Tenorio v. Social Security Administration
Filing
27
MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough denying 22 MOTION to Remand to Agency for Rehearing, with Supporting Memorandum. (kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWINA TENORIO,
Plaintiff,
v.
Civ. No. 17-138 SCY
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER1
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 17)2 filed June 12, 2017, in connection with Plaintiff’s Motion to Reverse and Remand for
Rehearing, With Supporting Memorandum, filed September 11, 2017. (Doc. 22.) Defendant
filed a Response on November 9, 2017. (Doc. 24.) And Plaintiff filed a Reply on November 27,
2017. (Doc. 25.) The Court has jurisdiction to review the Commissioner’s final decision under
42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the Court finds that Plaintiff’s motion is
not well taken and shall be DENIED.
I. Background and Procedural Record
Plaintiff Edwina Tenorio (Ms. Tenorio) alleges that she became disabled on November 2,
2012, at the age of forty-five because of a math disability, speech impediment, hypothyroidism,
heart palpitations, anxiety, hand-eye coordination problems, mental disability, and depression.
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 8, 9.)
2
Hereinafter, the Court’s citations to Administrative Record (Doc. 17), which is before the Court as a transcript of
the administrative proceedings, are designated as “Tr.”
1
(Tr. 223, 226.) Ms. Tenorio completed three years of college in 2000, and worked as a thrift
store processor and big box retail sales associate. (Tr. 227, 228.) Ms. Tenorio’s date of last
insured was December 31, 2017. (Tr. 223.)
On April 11, 2013, Ms. Tenorio protectively filed applications for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. § 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Act,
42 U.S.C. § 1381 et seq. (Tr. 201-04, 205-11.) Ms. Tenorio’s applications were denied at the
initial level (Tr. 82-92, 93, 94, 95-105, 138-142), and at reconsideration (Tr. 106-118, 119, 120,
121-133, 143-47). Upon Plaintiff’s request, Administrative Law Judge (ALJ) Frederick Upshall,
Jr., held a hearing on July 27, 2015. (Tr. 53-81, 149.) Ms. Tenorio appeared at the hearing with
attorney representative Ione E. Gutierrez.3 (Tr. 53.) The ALJ took testimony from Ms. Tenorio
(Tr. 58-72), and from impartial vocational expert (VE), Nicole King (Tr. 72-79.) On
September 1, 2015, ALJ Upshall issued a written decision concluding that Ms. Tenorio was “not
disabled” pursuant to the Act. (Tr. 32-47.) On January 10, 2017, the Appeals Council denied
Ms. Tenorio’s request for review, rendering ALJ Upshall’s September 1, 2015, decision the final
decision of Defendant the Commissioner of the Social Security Administration. (Tr. 1-8.)
Ms. Tenorio timely filed a complaint on January 30, 2017, seeking judicial review of the
Commissioner’s final decision. (Doc. 1.)
II. Applicable Law
A.
Disability Determination Process
An individual is considered disabled if she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
3
Ms. Tenorio is represented in this proceeding by Francesca J. MacDowell. (Doc. 1.)
2
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) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1) At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”4 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration requirement,
she is not disabled.
(3) At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of the
regulations and meets the duration requirement. If so, a claimant is presumed
disabled.
(4) If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant
medical and other evidence and determines what is “the most [claimant] can
still do despite [his physical and mental] limitations.” 20 C.F.R. §
404.1545(a)(1). This is called the claimant’s residual functional capacity
(“RFC”). Id. §§ 404.1545(a)(3). Second, the ALJ determines the physical and
mental demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work,
the Commissioner, at step five, must show that the claimant is able to perform
other work in the national economy, considering the claimant’s RFC, age,
4
Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a). Work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have
less responsibility than when you worked before. Id. Gainful work activity is work activity that you do for pay or
profit. 20 C.F.R. §§ 404.1572(b).
3
education, and work experience. If the Commissioner is unable to make that
showing, the claimant is deemed disabled. If, however, the Commissioner is
able to make the required showing, the claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); Fischer-Ross v. Barnhart, 431
F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The
claimant has the initial burden of establishing a disability in the first four steps of this analysis.
Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show that the claimant is capable of
performing work in the national economy. Id. A finding that the claimant is disabled or not
disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v.
Sec’y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.
Standard of Review
The Court reviews 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. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant evidence [that] a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not
based on substantial evidence if it is overwhelmed by other evidence in the record[,]” Langley,
373 F.3d at 1118, or if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371,
1374 (10th Cir. 1992). Therefore, although an ALJ is not required to discuss every piece of
evidence, “the record must demonstrate that the ALJ considered all of the evidence,” and “the
[ALJ’s] reasons for finding a claimant not disabled” must be “articulated with sufficient
particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Further, the decision
4
must “provide this court with a sufficient basis to determine that appropriate legal principles
have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). In undertaking
its review, the Court may not “reweigh the evidence” or substitute its judgment for that of the
agency. Langley, 373 F.3d at 1118.
III. Analysis
The ALJ made his decision that Ms. Tenorio was not disabled at step five of the
sequential evaluation.5 (Tr. 45-47.) The ALJ determined that Ms. Tenorio met the insured status
requirements of the Social Security Act through December 31, 2017 (Tr. 37), and that she had
not engaged in substantial gainful activity since November 1, 2012, the alleged onset date. (Id.)
He found that Ms. Tenorio had severe impairments of anxiety disorder, learning disorder, speech
impediment, cardiac palpitations, and obesity. (Id.) The ALJ determined, however, that
Ms. Tenorio’s impairments did not meet or equal in severity one the listings described in the
governing regulations, 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 38-40.) Accordingly, the
ALJ proceeded to step four and found that Ms. Tenorio had the residual functional capacity to
perform a full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). The
ALJ found that Ms. Tenorio
can stand/walk up to six hours in an eight-hour workday and sit up to six hours in
an eight-hour workday. She is able to push/pull within the light exertional level
weight limits (up to 20 pounds occasionally and 10 pounds frequently) and could
occasionally climb ramps/stairs but never climb ladders/ropes/scaffolds. She
should avoid concentrated exposure to environmental irritants such as fumes,
odors, dusts, gases and poorly ventilated areas. She should avoid all use of
moving machinery and all exposure to unprotected heights. She is limited to
unskilled work performed in a work environment that does not include fast-paced
production requirements, involving only simple work-related decisions, with few,
if any, changes in the workplace. She can tolerate only occasional interaction
with the public, incidental to the work performed, and only occasional interaction
with coworkers. The claimant cannot perform math beyond the fifth grade level,
5
The ALJ determined at step four that Ms. Tenorio may be capable of performing her past relevant work as a garment
sorter, but given uncertainties proceeded to step five. (Tr. 45-47.)
5
and is limited to occupations that do not require fast processing and quick handeye coordination and detail. The claimant is limited to occupations that do not
require frequent verbal communication.
(Tr. 41.) The ALJ concluded at step four that Ms. Tenorio may be able to perform her past
relevant work as a garment sorter, but given uncertainties proceeded to step five. (Tr. 45.) At
step five, the ALJ determined that based on her age, education, work experience, RFC, and the
testimony of the VE, that there were jobs existing in significant numbers in the national economy
that Ms. Tenorio could perform. (Tr. 45-47.)
In support of her Motion, Ms. Tenorio first argues that the ALJ’s RFC determination is
contrary to the substantial evidence in the record and contrary to the governing law because
(1) the Appeals Council failed to consider medical records that were dated after the ALJ’s
September 1, 2015, decision and improperly considered them out of time; (2) the ALJ’s findings
were inconsistent with NP Christine Lujan-Pino’s medical source statements, and the ALJ failed
to provide legitimate reasons for discounting NP Lujan-Pino’s December 4, 2012, medical
source statement; (3) the ALJ, having accorded great weight to the nonexamining State agency
psychological consultant opinions, failed to account for all of the limitations they assessed; and
(4) the ALJ relied on improper factors in evaluating statements regarding the intensity,
persistence, and limiting effects of Ms. Tenorio’s alleged disability. (Doc. 22 at 13-21.)
Ms. Tenorio next argues that the ALJ’s past work finding at step four contained legal error
because (1) the RFC is not supported by substantial evidence; (2) the ALJ failed to make specific
findings about Ms. Tenorio’s past work as a garment sorter; and (3) the ALJ’s “tentative finding”
at step four renders it unsupported by substantial evidence. (Id. at 22-23.) Lastly, Ms. Tenorio
argues that the ALJ’s step-five finding was in error because (1) the ALJ’s RFC is not supported
by substantial evidence; and (2) the ALJ’s RFC is inconsistent with jobs identified because they
6
require a reasoning level of two which is inconsistent with Ms. Tenorio’s moderate limitation in
her ability to understand and remember detailed instructions. (Id. at 23-24.)
The Commissioner argues that the ALJ’s RFC determination is supported by substantial
evidence because (1) the Appeals Council noted that the materials submitted after the ALJ’s
determination were made a part of the record and properly concluded that the information did not
provide a basis for changing the decision; (2) the ALJ reasonably discounted NP Lujan-Pino’s
December 2012 medical source statement for reasons that are supported by substantial evidence;
(3) the Appeals Council properly concluded that NP Lujan-Pino’s November 2015 medical
source statement did not change the ALJ’s decision because it was about a later time; (4) the ALJ
properly relied on the nonexamining State agency psychological consultant’s narrative
conclusions in assessing Ms. Tenorio’s mental RFC; and (5) the ALJ cited to regulatory criteria
that was supported by record evidence to determine that Ms. Tenorio’s statements about her
alleged disabilities were inconsistent. (Doc. 24 at 5-18.) The Commissioner also contends that
the ALJ’s step four findings are supported by substantial evidence because the ALJ classified
Ms. Tenorio’s past work using both vocational expert testimony and the DOT. (Id. at 18-19.)
The Commissioner asserts, however, that any error at step four is harmless because the ALJ
made findings at step five that are supported by substantial evidence. (Id.) Finally, the
Commissioner contends that the ALJ did not err in his step five findings because (1) the RFC is
supported by substantial evidence; and (2) unskilled work does not require the ability to
understand, remember or carry out detailed instructions, and Tenth Circuit case law supports
that a limitation to simple work is not inconsistent with reasoning level two jobs. (Id. at 19-21.)
As fully discussed below, the Court finds that there is no reversible error.
7
A.
The ALJ’s RFC Is Supported by Substantial Evidence
In assessing a claimant’s RFC at step four, the ALJ must consider the combined effect of
all of the claimant’s medically determinable impairments, and review all of the evidence in the
record. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. §§ 404.1545(a)(2)
and (3), 416.945(a)(2) and (3). Most importantly, the ALJ’s “RFC assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts . . . and nonmedical evidence.” Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996
WL 374184, at *7). When the ALJ fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical facts and nonmedical evidence, the
court will conclude that his RFC conclusions are not supported by substantial evidence. See
Southard v. Barnhart, 72 F. App’x 781, 784-85 (10th Cir. 2003). The ALJ’s decision must be
sufficiently articulated so that it is capable of meaningful review. See Spicer v. Barnhart, 64 F.
App’x 173, 177-78 (10th Cir. 2003).
The Court will address each of Ms. Tenorio’s arguments in turn.
1.
Consideration of Additional Evidence
After the ALJ’s September 1, 2015, determination, Ms. Tenorio submitted additional
evidence to the Appeals Council for its review and consideration, which the Appeals Council
made part of the record.6 (Tr. 6-7.) In its decision denying Ms. Tenorio’s request for review, the
Appeals Council specifically stated that they
looked at a letter describing future treatment plans dated November 16, 2015 (3
pages), an attendance agreement with Presbyterian Outpatient Rehabilitation
Services dated November 13, 2015 (10 pages), and an undated information
package on autoimmune diseases received October 15, 2015 (7 pages). The
Administrative Law Judge decided your case through September 1, 2015. This
6
The evidence made part of the record included Exhibits 24E (Tr. 263-68), 16F (Tr. 651-56), 17F (Tr. 657-60), 18F
(Tr. 661-62), 19F (Tr. 663-68), 20F (Tr. 669-730), 21F (Tr. 731-802, 22F (Tr. 803-41), 23F (Tr. 842-62) and 24F (Tr.
863-64).
8
new information is about a later time. Therefore, it does not affect the decision
about whether you were disabled beginning on or before September 1, 2015.
(Tr. 2.) Ms. Tenorio argues that the Appeals Council committed legal error when it determined,
without more, that the November 2015 medical evidence, specifically the November 10, 2015,
medical source statements completed by CNP Christine Lujan-Pino, was not related to the
relevant period of time. (Doc. 22 at 13-14.) She contends that medical source statements qualify
as new, material and temporally relevant because they relate to Ms. Tenorio’s history of
osteoarthritis and her worsening mental impairments. (Id. at 14, Doc. 25 at 1-5.) The
Commissioner asserts that the Appeals Council properly noted it considered the new evidence
and was not required to provide an analysis to explain its reasons for declining review.7 (Doc. 24
at 6-7.)
The Appeals Council will grant review of a case if, inter alia, “the claimant submits
additional evidence that is new, material, and related to the period on or before the date of the
ALJ decision.” 20 C.F.R. §§ 404.970(b) and 416.1470(b) see also Chambers v. Barnhart, 389
F.3d 1139, 1142 (10th Cir. 2004) (holding that under 20 C.F.R. §§ 404.970(b) and 416.1470(b)
the Appeals Council must consider evidence submitted with a request for review if it is new,
material, and related to the period on or before the date of the ALJ’s decision).
This means the evidence is:
1.
Not part of the claim(s) record as of the date of the ALJ decision;
2.
Relevant, i.e., involves or is directly related to issues adjudicated by the
ALJ; and
7
Ms. Tenorio explained in her Reply that the Commissioner had misunderstood her argument and that she was not
arguing a lack of analysis, but instead that the Appeals Council erred in its determination that the evidence submitted
was about a later time. (Doc. 25 at 1-5.) Because the Court finds that Ms. Tenorio’s argument has no merit, there is
no need for the Commissioner to provide a surreply.
9
3.
Relates to the period on or before the date of the ALJ, meaning it is
(1) dated before or on the date of the ALJ decision, or (2) post-dates the
ALJ decision but is reasonably related to the time period adjudicated by
the ALJ.
NOTE 1:
The AC does not apply a strict deadline when determining if
post-dated evidence relates to the period at issue. There are
circumstances when evidence dated after the ALJ decision relates
to the period at issue. For example, a statement may relate to the
period at issue when it postdates the decision but makes a direct
reference to the time period adjudicated by the ALJ. This may be
especially important in a claim involving a date last insured (DLI)
where a statement from a treating source dated after an ALJ
decision specifically addresses the time period before the DLI.
Commissioner’s Hearings, Appeals and Litigation Manual (“HALLEX”) I-3-3-6(B); see also
Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003) (affirming that evidence is new if it is
not duplicative or cumulative, and is material if there is a reasonable possibility it could change
the outcome). The Tenth Circuit has repeatedly held that whether evidence is “new, material and
chronologically pertinent is a question of law subject to our de novo review.” Krauser v. Astrue,
638 F.3d 1324, 1328 (10th Cir. 2011) (quoting Threet, 353 F.3d at 1191) (citing Chambers v.
Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004)).
If the evidence does not qualify, it plays no further role in judicial review of the
Commissioner’s decision. If the evidence does qualify and the Appeals Council
considered it “in connection with the claimant’s request for administrative review
(regardless of whether review was ultimately denied), it becomes part of the
record we assess in evaluating the Commissioner’s denial of benefits under the
substantial-evidence standard.” Finally, if the evidence qualifies but the Appeals
Council did not consider it, the case should be remanded for further proceedings.
Chambers, 389 F.3d at 1142 (quoting O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)).
“[O]ur general rule of de novo review permits us to resolve the matter and remand if the Appeals
Council erroneously rejected the evidence.” Krauser, 638 F.3d at 1328 (citing Chambers, 389
F.3d at 1142).
10
Thus, whether the November 2015 medical source statements are new, material, and
chronologically pertinent is a question of law subject to de novo review. Threet, 353 F.3d at
1191. Although the Appeals Council determined that the newly submitted evidence was not
related to the relevant time period, the Court addresses all three criteria as part of its de novo
review.
The November 2015 medical source statements are new evidence. “Evidence is new
within the meaning of 404.970(b) [and 416.1470(b)] if it is not duplicative or cumulative.”
Threet, 353 F.3d at 1191 (citations omitted). The November 2015 medical source statements
were not available to the ALJ at the time he made his decision, and they are neither duplicative
nor cumulative. Thus, the evidence is considered new.
The November 2015 medical source statements are material only in part. Evidence is
material to the determination of disability “if there is a reasonable possibility that [it] would have
changed the outcome.” Threet, 353 F.3d at 1191 (citations omitted). On November 10, 2015,
CNP Lujan-Pino assessed functional limitations regarding Ms. Tenorio’s ability to do workrelated physical activities based on Ms. Tenorio’s recent autoimmune disease and osteoarthritis
diagnoses. (Tr. 847-49.) These new diagnoses, however, do not form part of the basis for
Ms. Tenorio’s allegations that she was disabled during the relevant time period.8 Because these
8
Ms. Tenorio did not allege disability based on autoimmune disease or osteoarthritis, nor did she report or testify she
had exertional limitations related to either. On September 29, 2015, laboratory studies demonstrated Ms. Tenorio
was positive for antinuclear antibodies, which could indicate an autoimmune disease. (Tr. 654, 687-88.) Ms. Tenorio
was scheduled for additional testing. (Tr. 843.) On September 29, 2015, radiologic studies demonstrated Ms. Tenorio
had degenerative disease in her lumbar spine, knees, and left shoulder. (Tr. 664.) On November 2, 2015, PA Mitchell
Constant of Presbyterian Medical Group Orthopedics diagnosed Ms. Tenorio with chondromalacia-patellofemoral
pain syndrome (both knees) and osteoarthritis (both knees and both shoulders). (Tr. 854-55.) Ms. Tenorio argues
that the record evidence shows a history of left knee injury and back and shoulder pain prior to the date of last insured.
(Doc. 25 at 1.) Ms. Tenorio cites two records dated several years before her alleged onset date; i.e., Ms. Tenorio
twisted her right knee on November 21, 2003 (Tr. 761); and Ms. Tenorio fell on her left knee on February 23, 2004
(Tr. 819). Ms. Tenorio cites one record during the relevant period of time related to knee pain; i.e., on July 3, 2014,
she presented to CNP Lujan-Pino for follow up on her thyroid disorder and complained of knee pain during the review
of systems. (Tr. 529.) CNP Lujan-Pino did not make an assessment, order any diagnostic studies, or prescribe any
treatment related to Ms. Tenorio’s reported knee pain on that date. (Tr. 530.) There is no other evidence in the
11
diagnoses do not bear on whether Ms. Tenorio was disabled during the period of time under
consideration, this evidence is not material. See Chambers, 389 F.2d at 1144 (finding that
evidence submitted for the first time to the Appeals Council was not material where it related to
conditions that had not been presented to the ALJ or at any time previously.)
In contrast, Ms. Tenorio’s application does assert limitations based on work-related
mental activities and the ALJ found her severely impaired in this area. Thus, CNP Lujan-Pino’s
assessment that Ms. Tenorio has limited ability to do work-related mental activities as a result of
anxiety disorder does relate to an impairment Ms. Tenorio asserted in her application. (Tr. 37,
849-52.) Because CNP Lujan-Pino assessed certain marked limitations that, if supported by
substantial evidence, reasonably could have changed the outcome of the ALJ’s determination,
this evidence is material.
Even though material, however, these November 2015 medical source statements are not
chronologically pertinent because they do not relate to the time period the ALJ adjudicated, i.e.,
the period on or before the date of the ALJ’s decision. Chambers, 389 F.3d at 1142. Here, the
ALJ issued his decision on September 1, 2015. (Tr. 32-47.) CNP Lujan-Pino’s November 2015
statements, then, clearly come after the period the ALJ adjudicated. Further, CNP Lujan-Pino’s
November 2015 makes no reference to Ms. Tenorio’s status during the time period the ALJ
adjudicated. To the contrary, in a letter addressed to the Social Security Administration that
accompanied the November 10, 2015, medical source statements, CNP Lujan-Pino discussed
Ms. Tenorio’s recent diagnoses and provided recent documentation in support of Ms. Tenorio’s
different medical conditions. (Tr. 843.) She also explicitly stated that
Administrative Record related to knee pain. Further, there is no evidence in the Administrative Record that
demonstrates a history of back and/or shoulder pain, or that Ms. Tenorio reported back and/or shoulder pain during
the relevant period of time.
12
[i]t is my medical opinion that, given all of Ms. Tenorio’s heath [sic] and medical
conditions and issues, she can no longer be expected to ever be employable again.
The medical evidence shows that, now and into the future, Edwina can no longer
sustain a position of employment due to her overall health conditions.
(Tr. 843.) (Emphasis added.) This language demonstrates that the limitations assessed in CNP
Lujan-Pino’s November 2015 statements do not relate back to the period of time currently under
consideration, but instead address Ms. Tenorio’s medical status as of November 10, 2015.
For the foregoing reasons, the Court finds the Appeals Council properly determined that
the November 2015 medical evidence was about a later date. As such, there is no reversible
error as to this issue.
2.
The ALJ Properly Evaluated CNP Lujan-Pino’s December 2012
Medical Source Statement
Ms. Tenorio argues that the ALJ’s RFC is inconsistent with CNP Lujan-Pino’s December
2012 and November 2015 assessments, and that the ALJ failed to provide legitimate reasons for
discounting the December 2012 assessment. (Doc. 22 at 14-18.) As discussed above, CNP
Lujan-Pino’s November 2015 assessments were not before the ALJ and the Appeals Council did
not err in determining that these assessments did not relate to the period the ALJ adjudicated.
See Section III.A.1, supra. The only part of Ms. Tenorio’s argument remaining, therefore, is
whether the ALJ provided legitimate reasons for the weight he accorded CNP Lujan-Pino’s
December 2012 assessment.
On December 4, 2012, CNP Lujan-Pino completed a Medical Source Statement
Concerning the Nature and Severity of an Individual’s Mental Impairment on Ms. Tenorio’s
behalf. (Tr. 380-84). In the medical source statement, CNP Lujan-Pino assessed both mild and
moderate mental limitations based on Ms. Tenorio’s panic disorder and hypothyroidism.9 (Tr.
9
CNP Lujan-Pino assessed moderate limitations in Ms. Tenorio’s ability to (1) understand and remember detailed
instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods (the
13
380-384.) When asked what date Ms. Tenorio became unable to perform her job, CNP LujanPino noted that Ms. Tenorio “was always capable.” (Tr. 384.) CNP Lujan-Pino also prepared a
concurrent transmittal letter in which she stated that she had seen Ms. Tenorio four times since
2008 and that she recalled her as “being essentially physically healthy.” (Tr. 385.) She also
noted that Ms. Tenorio “did have anxiety, which seemed to exacerbate her stammering.” (Id.)
The ALJ accorded CNP Lujan-Pino’s opinion little weight “because it contains no explanations
for the conclusions and is not consistent with the record as a whole.” (Tr. 44.) The ALJ also
stated that the “checklist-style form” appeared to have been completed as an accommodation.
(Id.) The ALJ noted that he considered her opinion as that from an “other source.” (Id.)
Ms. Tenorio argues that CNP Lujan-Pino’s use of a “checklist-style form” is not a proper
basis for discounting the assessment. (Doc. 22 at 16-17.) She further argues that any lack of
explanation in the December 2012 assessment was cured by CNP Lujan-Pino’s explanations in
the November 2015 assessments. (Id. at 17.) Finally, Ms. Tenorio argues that to the extent the
ALJ discounted CNP Lujan-Pino’s opinion because of her “other source” status, it was improper
to do so because CNP Lujan-Pino did not provide a medical diagnosis but assessed
Ms. Tenorio’s functional limitations. (Id. at 17-18.) The Commissioner contends that the ALJ
reasonably discounted CNP Lujan-Pino’s opinion regarding the nature and severity of
Ms. Tenorio’s mental impairments. (Doc. 24 at 7-8.)
approximately 2-hour segments between arrival and first break, lunch, second, break and departure); (4) sustain an
ordinary routine without special supervision; (5) complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods; (6) interact appropriately with the general public; (7) accept instructions and respond appropriately to
criticism from supervisors; (8) respond appropriately to changes in the work setting; (9) travel in unfamiliar places or
to use public transportation; and (10) set realistic goals or to make plans independently of others. (Tr. 380-82.)
14
The regulations contemplate the use of information from “other sources,” both medical10
and non-medical,11 “to show the severity of an individual’s impairment(s) and how it affects the
individual’s ability to function.” Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (citing
20 C.F.R. §§ 416.902); see SSR 06-03p, 2006 WL 2329939, at *2.12 “Information from these
‘other sources cannot establish the existence of a medically determinable impairment. Instead,
there must be evidence from an ‘acceptable medical source’13 for this purpose.” SSR 06-03p,
2006 WL 2329939, at *2. An ALJ is required to explain the weight given to opinions from other
medical sources and non-medical sources who have seen a claimant in their professional
capacity, “or otherwise ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when
such opinions may have an effect on the outcome of the case.” Id. at *6; see also Keyes-Zachary
v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (finding that ALJ was required to explain the
amount of weight given to other medical source opinion or sufficiently permit reviewer to follow
adjudicator’s reasoning). The weight given to this evidence will vary according to the particular
facts of the case, the source of the opinion, the source’s qualifications, the issues that the opinion
10
For claims filed before March 27, 2017, other medical sources are defined as nurse practitioners, physician
assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapist. SSR 06-03p, 2006
WL 2329939, at *2; SSR 96-2p, 2017 WL 3928298.
11
For claims filed before March 27, 2017, non-medical sources include, but are not limited to, educational personnel,
such as school teachers, counselors, early intervention team members, developmental center workers, and daycare
center workers; public and private social welfare agency personnel, rehabilitation counselors; and spouses, parents
and other caregivers, siblings, other relatives, friends, neighbors, clergy, and employers. SSR 06-03p, 2006 WL
2329939, at *2; SSR 96-2p, 2017 WL 3928298.
12
SSR 06-3p is rescinded for claims filed on or after March 27, 2017. SSR 96-2p, 2017 WL 3928298, at *1. For
claims filed after March 27, 2017, all medical sources can make evidence that are categorized and considered as
medical opinions. Id. at *2.
13
For claimed filed before March 27, 2017, “acceptable medical sources” are licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. SSR 06-03p,
2006 WL 2329939, at *1; SSR 96-2p, 2017 WL 3928298.
15
is about, and other factors, i.e., how long the source has known and how frequently the source
has seen the individual; how consistent the opinion is with other evidence; the degree to which
the source presents relevant evidence to support an opinion; how well the source explains the
opinion; whether the source has a specialty or area of expertise related to the individual’s
impairment; and any other facts that tend to support or refute the opinion. SSR 06-03p, 2006
WL 2329939, at *4-5.
As an initial matter, the ALJ’s speculation that CNP Lujan-Pino completed the
assessment as an accommodation to Ms. Tenorio is not a proper basis for discounting a medical
opinion. See Langley, 373 F.3d at 1121 (rejecting as speculative the ALJ’s conclusion that a
medical report was simply an act of courtesy to a patient); see also 20 C.F.R. §§ 404.1527(c) and
416.927(c) (setting forth appropriate factors for evaluating opinion evidence for claims filed
before March 27, 2017). Further, case law addressing medical source opinions expressed on
checkbox-style forms underscores that the critical question is whether the checkbox findings,
either on the form itself or elsewhere in the record, are supported by substantial evidence. See
Anderson, 319 F. App’x at 723-24 (finding that although the checklist forms completed by the
treating physicians recorded limited clinical comments, there were other materials that supported
the conclusions in the forms, including cardiovascular medical reports, echocardiograms, and
examination notes); Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (holding that the
magistrate judge incorrectly determined that it was unnecessary for the ALJ to discuss an
examining source’s opinion because it was presented on a checklist form where it was clear the
physician examined the claimant, made notes or circled medical terms for her findings on the
form at issue, and that the form was “clearly set up to record the results of a thorough physical
examination”); Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (holding that evaluation forms,
16
standing alone, unaccompanied by thorough written reports or persuasive testimony, are not
substantial evidence); Fierro v. Colvin, 2014 WL 12791246, at *4 (D.N.M. May 28, 2014)
(rejecting the Commissioner’s argument that the ALJ was entitled to reject a treating physician’s
opinion merely because it was provided on a checkbox form and finding that the opinion was
supported by treatment notes, treatment plans, and other documentation). Thus, while CNP
Lujan-Pino’s mere use of a checkbox-style form to assess Ms. Tenorio’s ability to do
work-related mental functions does not provide a basis to discount her assessment, her
assessment can be discounted if it is not supported by substantial evidence. Here, as discussed
below, the ALJ properly discounted her December 4, 2012, assessment because it was not
supported by substantial evidence.
The ALJ’s explanations for discounting CNP Lujan-Pino’s December 2, 2012,
assessment are legitimate and supported by substantial evidence. Here, the ALJ explained that
CNP Lujan-Pino’s assessment contained no explanations for her conclusions and it was not
consistent with the record as a whole. (Tr. 44.) These are proper bases for discounting medical
opinion evidence. See 20 C.F.R. §§ 404.1527(c)(3) and (4), 416.927(c)(3) and (4) (explaining
that the more a medical source presents relevant evidence to support a medical opinion, and the
more consistent a medical opinion is with the record as a whole, the more weight will be
accorded to that opinion.) Further, the ALJ’s explanations are supported by substantial evidence.
Ms. Tenorio concedes that CNP Lujan-Pino provided no explanations for her assessed
limitations in December 2012, but argues that the November 2015 assessment contained “ample
explanation for her findings.” (Doc. 22 at 17.) As previously discussed, however, the November
2015 assessment does not relate to the period the ALJ adjudicated. See Section III.A.1, supra.
Thus, this argument necessarily fails. Additionally, although CNP Lujan-Pino represented she
17
had seen Ms. Tenorio four times from 2008 to 2012 (Tr. 385), the record contains only one
record prior to the date she completed the December 4, 2012, medical source statement, at which
time Ms. Tenorio denied any symptoms associated with her alleged mental impairments.14 (Doc.
371-79.) As such, CNP Lujan-Pino’s one treatment note does not support her assessed
limitations because it made no reference to any complaints about or treatment for Ms. Tenorio’s
anxiety, nor did she indicate any observed signs or symptoms related to Ms. Tenorio’s alleged
mental limitations. Finally, other medical source evidence in the record supports the ALJ’s
explanation that CNP Lujan-Pino’s assessment was not consistent with the record as a whole.15
For the foregoing reasons, the ALJ provided legitimate reasons that are supported by
substantial evidence for the weight he accorded CNP Lujan-Pino’s December 4, 2012,
assessment.
14
On February 27, 2012, Ms. Tenorio presented to CNP Lujan-Pino to get prescription medication for her thyroid
condition. (Tr. 375.) CNP Lujan-Pino noted that Ms. Tenorio had been absent for one year due to lack of insurance.
(Id.) During the review of systems, Ms. Tenorio denied any sleep disturbance, dysphoric mood, nervousness, or
anxiety. (Tr. 378.) On physical exam, CNP Lujan-Pino noted, inter alia, that Ms. Tenorio had a normal mood and
affect, and that her behavior, judgment and thought content were all normal. (Id.) CNP Lujan-Pino did not make any
assessment related to Ms. Tenorio’s alleged mental impairments, nor did she recommend any treatment or prescribe
any medications related to her mental impairments. (Id.)
15
On January 28, 2013, Clifford Morgan, Ph.D., psychologically evaluated Ms. Tenorio on a referral from the Division
of Vocational Rehabilitation. (Tr. 644-49.) Dr. Morgan took Ms. Tenorio’s histories and administered psychological
testing. (Id.) Dr. Morgan summarized, inter alia, that Ms. Tenorio had excellent verbal skills, some difficulty with
nonverbal performance, was personable and had no interpersonal difficulties, appeared very motivated, had a history
of working hard to improve herself, had a stable personality with no significant mental health or substance abuse or
legal problems, and handled work stress well although she had some problems with one or more supervisors at
Wal-Mart which led to her termination. (Tr. 648.)
On August 5, 2018, nonexamining State agency psychological consultant Donald K. Gucker, Ph.D., reviewed the
medical evidence record and, although assessing certain moderate limitations, concluded that Ms. Tenorio could
“understand, remember, and carry out simple instructions, make simple decisions, attend and concentrate for two
hours at a time, interact adequately with co-workers and supervisors, and respond appropriately to changes in routine
work settings.” (Tr. 90, 103.) On December 17, 2013, at reconsideration, nonexamining State agency psychological
consultant Ralph Robinowitz, Ph.D., affirmed Dr. Gucker’s assessment. (Tr. 115, 130.)
18
3.
The ALJ’s RFC Properly Accounted for the Limitations
Assessed by the Nonexamining State Agency Psychological
Consultants
Ms. Tenorio argues that, having accorded great weight to nonexamining State agency
psychological consultants Dr. Gucker’s and Dr. Robinowitz’s assessments, the ALJ failed to
account for all of their assessed limitations as he was required to do. (Doc. 22 at 18-19.) In
particular, Ms. Tenorio argues that the ALJ failed to account for part of Dr. Gucker’s narrative
conclusion that Ms. Tenorio could understand, remember, and carry out simple instructions, and
two of Dr. Gucker’s and Dr. Robinowitz’s worksheet moderate limitations; i.e., that she was
moderately impaired in her ability to accept instructions from and respond appropriately to
criticism from supervisors and to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods. (Doc. 22 at 18-19.) The Commissioner
contends that the ALJ’s RFC fully accounted for the nonexamining State agency psychological
consultant’s narrative conclusions as he was required to do. (Doc. 24 at 14-15.)
On August 5, 2018, nonexamining State agency psychological consultant Donald K.
Gucker, Ph.D., reviewed and discussed the medical evidence record and Ms. Tenorio’s Adult
Function Report and, although assessing certain moderate limitations,16 concluded in his
narrative discussion that Ms. Tenorio could “understand, remember, and carry out simple
instructions, make simple decisions, attend and concentrate for two hours at a time, interact
16
Dr. Gucker assessed that Ms. Tenorio had moderate limitations in her ability to (1) understand and remember
detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods;
(4) work in coordination with or in proximity to others without being distracted by them; (5) complete a normal
workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods; (6) interact appropriately with the general public;
(7) accept instructions and respond appropriately to criticism from supervisors; (8) get along with coworkers or peers
without distracting them or exhibiting behavioral extremes; (9) respond appropriately to changes in the work setting;
and (10) set realistic goals or make plans independently of others. (Tr. 88-89, 101-102.)
19
adequately with co-workers and supervisors, and respond appropriately to changes in routine
work settings.”17 (Tr. 90, 103.) On December 17, 2013, at reconsideration, nonexamining State
agency psychological consultant Ralph Robinowitz, Ph.D., affirmed Dr. Gucker’s assessed
limitations and conclusion. (Tr. 115, 130.) The ALJ, in turn, assessed that Ms. Tenorio was
limited to unskilled work performed in a work environment that does not include
fast-paced production requirements, involving only simple work-related
decisions, with few, if any, changes in the workplace. She can tolerate only
occasional interaction with the public, incidental to the work performed, and only
occasional interaction with coworkers. The claimant cannot perform math
beyond the fifth grade level, and is limited to occupations that do not require fast
processing and quick hand-eye coordination and detail. The claimant is limited to
occupations that do not require frequent verbal communication.
(Tr. 41.)
In an unpublished, but persuasive opinion, the Tenth Circuit specifically addressed the
ALJ’s responsibility in evaluating a State agency psychological consultant’s MRFCA in light of
the instructions printed on the forms and certain sections of the POMS that describe the separate
functions of Sections I and III. Tenth Circuit case law instructs that an ALJ may not “turn a
blind eye to moderate Section I limitations” and that
[i]f a consultant’s Section III narrative fails to describe the effect that each of the
Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be
considered part of the substantial evidence supporting an ALJ’s RFC finding.
17
The Court notes that the consultants did not use special Form SSA-4734-F4-SUP which contains three sections, one
of which is a worksheet for rating functional limitations (Section I) and one of which is for recording the mental RFC
determination (Section III). Instead, they used an MRFCA form which contains the same worksheet questions, the
same rating system, and explains that “[t]he questions below help determine the individual’s ability to perform
sustained work activities. However, the actual mental residual functional capacity assessment is recorded in the
narrative discussion(s), which describe how the evidence supports each conclusion.” (Tr. 88, 101.) As such, the
structure is essentially the same; i.e., the consultant answers the worksheet questions that form the basis of the actual
mental residual capacity assessment contained in the narrative discussion.
20
Carver v. Colvin, 600 F. App’x 616, 619 (10th Cir. 2015) (unpublished).18 Further, when an ALJ
properly accounts for the effects of the limitations enumerated in Section I of the MRFCA, there
is no reversible error in evaluating opinion evidence or assessing a claimant’s RFC. See Nelson
v. Colvin, 655 F. App’x 626, 629 (10th Cir. 2016) (finding no reversible error regarding the
ALJ’s mental RFC assessment because the ALJ effectively accounted for all the limitations
indicated in Section I of the MRFCA) (emphasis in original)19; Lee v. Colvin, 631 F. App’x 538,
541 (10th Cir. 2015) (finding no reversible error regarding the ALJ’s RFC assessment because
the ALJ did not ignore the Section I limitations and the RFC assessment reflected the moderate
limitations identified in Section I of the MRFCA);20 Fulton v. Colvin, 631 F. App’x 498, 502
18
In Section I, the State agency consultant found that the claimant had moderate limitations in the ability to
(1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) interact appropriately with
the general public; and (4) accept instructions and respond appropriately to criticism from supervisors. Carver v.
Colvin, 600 F. App’x 616, 618 (10th Cir. 2015). In Section III, the State agency consultant assessed that the claimant
could “perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, relate
superficially to the general public on a limited basis, and adapt to simple work situation.” Id. The claimant argued
that the State agency consultant’s Section III assessment failed to account for the Section I moderate limitation in
accepting instructions and responding appropriately to criticism from supervisors. Id. at 618-19. The Court disagreed
and held that the Section III assessment that claimant could relate to supervisors and peers on a superficial work basis
adequately encapsulated the Section I moderate limitation in claimant’s ability to accept instructions and respond
appropriately to criticism from supervisors. Id. at 619. The Court further held that the ALJ’s RFC sufficiently
captured the essence of the State agency consultant’s Section III assessment by limiting claimant to simple work and
stating that claimant could “interact with co-workers and supervisors, under routine supervision.” Id. at 620.
19
In Section I, the State agency consultant found the claimant had moderate limitations in the ability to maintain
attention and concentration for extended periods, and marked limitations in the ability to understand and remember
detailed instructions, carry out detailed instructions, and interact appropriately with the public. Nelson, 655 F. App’x
626, 628 (10th Cir. 2016.) In Section III, the State agency consultant assessed that “claimant is capable of carrying
out simple instructions with routine supervision. Claimant is capable of interacting appropriately with supervisors
and coworkers on a superficial basis but not with the general public. Claimant can adapt to a work situation.” Id. at
629. The Court noted that the ALJ, in turn and without error, incorporated the Section III findings into the RFC. Id.
The Court further noted that “[m]ore to the point, by limiting [claimant] to unskilled work, the ALJ effectively
accounted for all the limitations noted in Section I[.]” Id. (emphasis in original). The Court explained that “[e]ven
though [the State agency consultant] noted marked limitations in [claimant’s] ability to remember detailed
instructions, carry out detailed instructions, and interact appropriately with the public, unskilled work does not require
these abilities, nor does it require the ability to maintain attention and concentration for extended periods[.]” Id.
20
In Section I, the State agency consultant found the claimant had moderate limitations in the ability to (1) maintain
attention and concentration for extended periods; (2) accept instructions and respond appropriately to criticism from
supervisors; and (3) get along with coworkers or peers without distracting them or exhibiting behavioral extremes.”
Lee v. Colvin, 631 F. App’x 538, 542 (10th Cir. 2015). In Section III, the State agency consultant assessed that claimant
could perform simple tasks, work with routine supervision, relate to supervisors on a superficial basis, and relate to
peers on a superficial basis. Id. The ALJ adopted the Section III assessment. Id. at 541. The Court held that the
21
(10th Cir. 2015) (finding that the ALJ did not err in evaluating opinion evidence where he
discussed only certain Section III findings because the ALJ acknowledged the distinction
between Section I and Section III of the MRFCA and the Court found no contradiction between
the two sections);21 Carver, 600 F. App’x at 619 (finding no reversible error regarding the ALJ’s
mental RFC assessment because the ALJ sufficiently captured the essence of psychological
consultant’s Section III narrative which had adequately encapsulated the Section I limitations).
Thus, the questions before the Court are whether Dr. Gucker’s and Dr. Robinowitz’s narrative
conclusions adequately encapsulated the moderate limitations they assessed and whether the
ALJ, in turn, sufficiently captured the essence of their conclusions.
Dr. Gucker’s narrative conclusion adequately encapsulated the moderate limitations he
assessed and clearly related in terms of work-related functions Ms. Tenorio’s ability to do workrelated mental activities. Here, the narrative portion of Dr. Gucker’s MRFCA is detailed and he
explains his review of the record evidence and the bases of his conclusion.22 Similarly,
Section III narrative and the ALJ’s RFC “explained, accounted for, and delimited each of the moderate limitations
expressed in the Section I of the MRFCA,” and there was no error. Id.
21
In Section I, the State agency consultant found the claimant had moderate limitations in the ability to (1) work in
coordination with or proximity to others without being distracted by them; and (2) respond appropriately to changes
in the work setting. Fulton v. Colvin, 631 F. App’x 498, 501-02 (10th Cir. 2015). The State agency consultant found
the claimant had marked limitations in the ability to interact appropriately with the general public. Id. In Section III,
the State agency consultant assessed that the claimant was able to perform simple and some complex tasks under
ordinary supervision, able to interact with co-workers and supervisors for incidental work purposes but should avoid
public contact, and able to adapt to some work change. Id. The claimant argued that the ALJ erred by failing to
account for certain of the State agency consultant’s Section I findings. Id. The Court held that the ALJ properly
looked to the Section III narrative as the State agency consultant’s opinion regarding mental RFC because the Section
III assessment did not contradict the effects of the Section I limitations. Id.
22
Dr. Gucker discussed the medical evidence he reviewed, including CNP Lujan-Pino’s February 27, 2012, treatment
note in which Ms. Tenorio’s mental status exam was normal and noted no psychiatric diagnosis or treatment. (Tr.
89.) Dr. Gucker discussed CNP Lujan-Pino’s December 4, 2012, medical source statement, and Dr. Morgan’s
January 28, 2013, psychological evaluation summary and conclusions. (Tr. 90.) Dr. Gucker also discussed
Ms. Tenorio’s Adult Function Report, in which she reported no limitations in personal care; the ability to prepare
meals, do some household chores, drive, shop in stores, participate in some interests and social activities; and
limitations in handling stress, changes in routine, and understanding. (Id.)
22
Dr. Robinowitz listed the new medical evidence he reviewed at reconsideration.23 (Tr. 115,
130.) The ALJ, in turn, sufficiently captured the essence, and tempered, Dr. Gucker’s and
Dr. Robinowitz’s conclusions,24 and related Ms. Tenorio’s ability to do work-related mental
activities in terms of work-related functions. For example, in the area of understanding and
memory, Dr. Gucker and Dr. Robinowitz assessed that Ms. Tenorio could “understand,
remember, and carry out simple instructions, make simple decisions, [and] attend and
concentrate for two hours at a time.” (Tr. 90, 103, 115, 130.) The ALJ, in turn, assessed that
Ms. Tenorio was limited to “unskilled work performed in a work environment that does not
include fast-paced production requirements, involving only simple work-related decisions, . . . .
The claimant cannot perform math beyond the fifth grade level, and is limited to occupations that
do not require fast processing and quick hand-eye coordination and detail.” (Tr. 41.) Although
the ALJ did not specifically reference a limitation to simple instructions, unskilled work
generally requires the ability to, inter alia, understand, remember, and carry out simple
instructions. Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (citing POMS DI 25020.010,
§ B(3), quoting SSR 96-9p, 1996 WL 374185, at *9). Dr. Gucker and Dr. Robinowitz assessed
that Ms. Tenorio could “interact adequately with co-workers and supervisors.” (Tr. 90, 103, 115,
130.) The ALJ, in turn, assessed that Ms. Tenorio could “tolerate only occasional interaction
with the public, incidental to the work performed, and only occasional interaction with
coworkers. . . . The claimant is limited to occupations that do not require frequent verbal
23
The only new medical record evidence was a treatment note dated October 22, 2013, that noted normal mood, affect
and behavior. (Tr. 115, 130.) The record supports this finding. (Tr. 411.) Dr. Robinowitz also noted that Ms. Tenorio
“has college education and has significant amount of work hx, and although clmt has always stuttered it appears that
it is not significantly limiting.” (Tr. 115, 130.)
24
See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (finding that an ALJ does not commit reversible error by
electing to temper findings for the claimant’s benefit).
23
communication.”25 (Tr. 41.) Finally, Dr. Gucker and Dr. Robinowitz assessed that Ms. Tenorio
could “respond appropriately to changes in routine work settings.” (Tr. 90, 103, 115, 130.) The
ALJ, in turn, assessed that Ms. Tenorio could perform in a work environment “with few, if any,
changes in the workplace.” (Tr. 41.) The ALJ, therefore, sufficiently captured the essence of the
nonexamining State agency psychological consultants’ limitations.
For the foregoing reasons, the Court finds that the ALJ’s RFC properly accounted for the
limitations assessed by the nonexamining State agency psychological consultants. As such, there
is no reversible error as to this issue.
4.
The ALJ’s Evaluation of the Evidence Related to the Intensity,
Persistence, and Limiting Effect of Her Alleged Impairments Is
Supported by Substantial Evidence
Ms. Tenorio argues that the ALJ relied on improper factors in evaluating her allegations
of disabling anxiety. (Doc. 22 at 19-21.) Specifically, Ms. Tenorio argues that the ALJ
improperly relied on Ms. Tenorio’s lack of mental health care and her daily activities to find her
not credible, and improperly discounted Ms. Tenorio’s boyfriend’s statements. (Id.) The
Commissioner contends that the ALJ considered the regulatory factors supported by record
evidence to find Ms. Tenorio’s statements regarding her limitations were not consistent with the
record. (Doc. 24 at 16-18.)
“Credibility determinations are peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial evidence.” Wilson v. Astrue, 602
25
Each of the jobs the ALJ identified at step five has a “people” requirement of eight; i.e., the lowest level of human
interaction. See Appendix B – Explanation of Data, People, and Things, 1991 WL 688701 (explaining that the
“people” category has a range from zero to eight, with zero requiring the highest level of human interaction and eight
requiring the lowest). As such, the jobs identified do not involve frequent or involved interaction with co-workers,
supervisors, or the public. Lane v. Colvin, 643 F. App’x 766, 770 (10th Cir. 2016); see also Selected Characteristics
of Occupations Defined in the Revised Dictionary of Occupational Titles (1993) (describing the talking demands for
Laundry Sorter, Finish Inspector and Laundry Folder as “not present”), available at https://www.nosscr.org/sco/scoocr.pdf, pp. 203, 205 and 313.
24
F.3d 1136, 1144 (10th Cir. 2010) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(internal quotation omitted)). Nevertheless, an ALJ’s credibility finding “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.”
Id.; see also SSR 16-3p, 2016 WL 1119029, at *9 (“it is not sufficient for our adjudicators to
make a single, conclusory statement that ‘the individual’s statements about his or her symptoms
have been considered’ or that ‘the statements about the individual’s symptoms are (or are not)
supported or consistent.’”).
Here, the ALJ’s credibility findings are closely and affirmatively linked to substantial
evidence. The ALJ found that despite Ms. Tenorio’s allegedly disabling impairments,
Ms. Tenorio engaged in activities of daily living including preparing meals, performing
household chores, shopping, socializing with family, and following recipes.26 (Tr. 43.) The ALJ
found that the overall lack of mental health treatment and mild medical findings diminished the
persuasiveness of Ms. Tenorio’s allegations.27 (Id.) The ALJ noted that Ms. Tenorio reported to
Dr. Morgan that she did not think she needed counseling,28 and further noted that Dr. Morgan
indicated that Ms. Tenorio’s speech impediment was not a significant barrier to effective
26
Ms. Tenorio contends her cooking consisted of only frozen dinners, sandwiches, and canned soups or stews. (Doc.
22 at 20.) However, Ms. Tenorio reported that her food choices were constrained by food stamps and not her inability
to prepare meals. (Tr. 252.) Ms. Tenorio also contends that her household chores were limited to laundry and dishes
(Doc. 22 at 20), but Ms. Tenorio stated her boyfriend also directed her to clean up any mess she made. (Tr. 252.)
Ms. Tenorio reported that she goes outside at least twice a day to walk or go to “town.” (Tr. 253.) She also reported
socializing with her boyfriend and cousin, and that she goes to the library, her cousin’s house, Old Town, and the duck
pond on a regular basis. (Tr. 254.)
27
Ms. Tenorio argues that Ms. Tenorio was not required to seek specialized care to legitimize her anxiety or the
functional limitations related thereto. (Doc. 22 at 19.) She also argues that she had lost her health insurance after
leaving Wal-Mart. (Id.) However, the ALJ did not ignore Ms. Tenorio’s anxiety. To the contrary, the ALJ determined
at step two that Ms. Tenorio’s anxiety was a severe impairment. (Tr. 37.) That said, the record supports that even
when Ms. Tenorio sought medical care in the absence of health insurance, on February 27, 2012, and July 3, 2014,
she did not seek care for her alleged mental impairments and CNP Lujan-Pino indicated no diagnosis of or treatment
for mental impairments. (Tr. 378, 529-30.)
28
The record also supports that Ms. Tenorio reported to Dr. Morgan that she used over the counter stress medications
for her anxiety and that they worked well. (Tr. 646.)
25
communication. (Id.) The ALJ also found that Ms. Tenorio indicated she stopped working due
to interpersonal issues with her managers, and not due to her alleged impairments. (Id.) The
record supports these findings and they are proper factors to consider in evaluating the intensity,
persistence and limiting effects of an individual’s symptoms. See SSR 16-3p, 2016 WL
1119029, at *7 (listing factors to consider such as, inter alia, daily activities, types of medication
or treatment, effectiveness of medication or other treatment, and other measures used to relieve
symptoms).
Lastly, the ALJ discussed Ms. Tenorio’s boyfriend’s Third-Party Adult Function Report,
and accorded it little weight. (Tr. 44-45.) The ALJ explained that, like Ms. Tenorio’s
allegations, his statements were not supported by the preponderance of the medical source
evidence. (Tr. 44-45.) The ALJ also noted that he had no medical expertise as a basis to observe
signs and symptoms related to the intensity of Ms. Tenorio’s alleged impairments. (Id.) These
are proper bases for discounting his report and they are supported by substantial evidence. SSR
06-03p, 2006 WL 2329939, at *4-5.
For the foregoing reasons, the Court finds the ALJ’s findings concerning the intensity,
persistence, and limiting effects of Ms. Tenorio’s symptoms are closely and affirmatively linked
to substantial evidence. As such, there is no reversible error as to this issue.
For all of the foregoing reasons, the Court finds that the ALJ applied the correct legal
standards in determining Ms. Tenorio’s RFC and that it is supported by substantial evidence.
B.
The ALJ’s Step Four Findings
Ms. Tenorio argues that the ALJ erred at step four because (1) the ALJ’s RFC was not
supported by substantial evidence; (2) the ALJ failed to make specific findings regarding her past
relevant work; and (3) the ALJ’s findings whether Ms. Tenorio could meet the job demands
26
despite the mental or physical limitations he found were tentative. (Doc. 22 at 21-23.) The
Commissioner contends that the (1) ALJ’s RFC was supported by substantial evidence; (2) the
ALJ classified Ms. Tenorio’s past work using both VE testimony and the DOT; and (3) any error
in the ALJ’s uncertainty that Ms. Tenorio could perform her past work is harmless error in light
of the ALJ’s alternative findings at step five. (Doc. 24 at 18-20.)
To determine whether a claimant can perform her past relevant work involves three
phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of
the relevant medical and other evidence and determines what is “the most [claimant] can still do
despite [his physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).
Second, the ALJ determines the physical and mental demands of claimant’s past work. Winfrey,
92 F.3d at 1024. Third, the ALJ determines whether, given claimant’s RFC, the claimant is
capable of meeting those demands. Id. at 1024-25.
The ALJ did not rely on Ms. Tenorio’s ability to do her past relevant work to determine
she was disabled. At step four, the ALJ explained that having compared the RFC with the
physical and mental demands of Ms. Tenorio’s past work as a garment sorter, she may be able to
perform it as actually and generally performed. (Tr. 45.) The ALJ also noted the VE’s
testimony that Ms. Tenorio’s past relevant work as a garment sorter did not require the
performance of any of the exertional or nonexertional abilities precluded by the RFC. (Id.) The
ALJ concluded, however, that
[n]otwithstanding the vocational expert’s testimony that claimant could perform
the position of garment sorter as actually and generally performed, there is some
uncertainty as to the impact which the limitation to occupations that do not
require fast processing and quick hand-eye coordination and detail would have on
claimant’s ability to perform the cashiering aspects of that job. Given the
uncertainties with regard to claimant’s ability to perform the garment sorting job,
it is necessary to progress to step five.
27
(Tr. 45.) Given this explanation, and the Court’s conclusion that substantial evidence supports
the ALJ’s step five findings, even assuming the existence of errors Ms. Tenorio alleges at step
four, those errors are harmless. See Martinez v. Astrue, 316 F. App’x 819, 824 (10th Cir. 2009)
(any error to make explicit findings at step four was harmless where the ALJ’s step five findings
were proper).
Thus, the Court finds that Ms. Tenorio’s step four arguments cannot support a finding of
reversible error.
C.
The Jobs the ALJ Identified at Step Five Are Consistent With the
ALJ’s RFC
With respect to the ALJ’s step five findings, Ms. Tenorio argues that the ALJ’s
hypothetical to the VE was tainted because the ALJ’s RFC was not supported by substantial
evidence and failed to include all of the limitations that were supported by substantial evidence.
(Doc. 22 at 23.) Ms. Tenorio also argues that the jobs the ALJ identified have a reasoning level
of two and are inconsistent with her ability to understand, remember and carry out simple
instructions. (Id. at 23-24.) The Commissioner contends that the ALJ’s RFC is supported by
substantial evidence, is consistent with unskilled work, and that the Tenth Circuit “has never held
that a limitation to simple work conflicts with reasoning level two as defined in the DOT.” (Doc.
24 at 20-21.)
When the disability analysis reaches step five of the sequential process, the burden shifts
to the Commissioner to show that “there are sufficient jobs in the national economy for a
hypothetical person with [the claimant’s] impairments,” Jensen v. Barnhart, 436 F.3d 1163,
1168 (10th Cir. 2005), “given her age, education, and work experience.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007); see also 20 C.F.R. §§ 416.960, 416.963-65 (explaining that a
claimant’s vocational factors of age, education, and work experience are considered, along with
28
the claimant’s RFC, to determine at step five whether there are a significant number of jobs that
a claimant can perform). The Commissioner’s showing must be supported by substantial
evidence. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
The ALJ’s step five findings are supported by substantial evidence. The Court has
already found that the ALJ’s RFC is supported by substantial evidence. See Section III.A.,
supra. Thus, this argument is rejected. As to Ms. Tenorio’s second argument, Ms. Tenorio cites
to Paulek v. Colvin, 662 F. App’x 588 (10th Cir. 2016) (unpublished), to argue that a limitation to
simple instructions precludes her from doing level-two reasoning jobs. The Court is not
persuaded. The court in Paulek relied on Hackett v. Barnhart, 396 F.3d 1168, 1176 (10th Cir.
2005), to hold that a limitation to simple instructions is inconsistent with level-three reasoning.
662 F. App’x at 594. Hackett had already established that simple work was inconsistent with
level-three reasoning. 395 F.3d at 1176. In rendering its decision, the Paulek court cited to Lucy
v. Chater, 113 F.3d 905, 909 (8th Cir. 1997), where the Eighth Circuit held that simple
instructions were inconsistent with both level-two and level-three reasoning. This Court,
however, does not interpret Paulek’s reference to Lucy as a suggestion, much less a holding in
the Tenth Circuit, that level-two reasoning jobs are inconsistent with simple, unskilled work.
Instead, Paulek established that Hackett controls, and that level-three reasoning jobs are
inconsistent with both simple work and simple instructions. Here, the ALJ identified jobs with
level-two reasoning that are consistent with the ALJ’s RFC for “unskilled work performed in a
work environment that does not include fast-paced production requirements, involving only
simple work-related decision[.]” (Tr. 41.) Therefore, the Court rejects Ms. Tenorio’s argument,
finds that the ALJ’s step five findings are supported by substantial evidence, and concludes there
is no reversible error as to this issue.
29
IV. Conclusion
For the reasons stated herein, Ms. Tenorio’s Motion to Reverse and Remand for
Rehearing, With Supporting Memorandum filed September 11, 2017 (Doc. 22.) is DENIED.
IT IS SO ORDERED.
_____________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge,
Presiding by Consent
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