Yotter v. Social Security Administration

Filing 23

MEMORANDUM OPINION AND ORDER denying 17 Motion to Reverse and Remand for a Rehearing with Supporting Memorandum by Magistrate Judge Carmen E. Garza. (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY LOUIS YOTTER, II,
Plaintiff,
v.

No. CV 17-202 CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Anthony Louis Yotter, II’s, Motion
to Reverse and Remand for a Rehearing with Supporting Memorandum, (Doc. 17), filed
September 8, 2017; Defendant Commissioner Nancy A. Berryhill’s Brief in Response to
Plaintiff’s Motion to Reverse and Remand the Agency’s Administrative Decision, (Doc.
20), filed November 7, 2017; and Mr. Yotter’s Reply in Support of Motion to Reverse
and Remand for a Rehearing, (Doc. 21), filed November 17, 2017.
On July 30, 2013, Mr. Yotter filed an application for disability insurance benefits
alleging disability beginning June 12, 2009. (AR 94-95). Mr. Yotter’s application was
denied initially on October 11, 2013, (AR 105-06), and upon reconsideration on May 8,
2014, (AR 121-22). Mr. Yotter requested a hearing before an Administrative Law Judge
(“ALJ”), which was granted, and a hearing was held on November 12, 2015, before ALJ
Eric Weiss. (AR 57-93). Mr. Yotter and his wife, Angie Nunez-Yotter, testified at the
hearing, along with Karen Provine, an impartial vocational expert (“VE”). (AR 57).
Michael Armstrong, Mr. Yotter’s current counsel, represented him at the hearing. Id.

On January 7, 2016, ALJ Weiss issued his decision finding Mr. Yotter not
disabled between his alleged disability onset date and the date he was last insured. (AR
26-51). Mr. Yotter requested review by the Appeals Council, (AR 22), which was denied,
(AR 1-4), making the ALJ’s decision the Commissioner’s final decision for purposes of
this appeal.
Mr. Yotter has appealed to this Court alleging the ALJ committed reversible error
by: (1) improperly evaluating and weighing the opinions of Mr. Yotter’s treating
physicians; (2) failing to analyze medical opinions at step three of the sequential
evaluation process; (3) applying an incorrect legal standard when evaluating the
opinions of state agency non-examining consultants; and (4) improperly questioning the
VE. (Doc. 17 at 2). The Court has considered the Motion, Response, Reply, and the
relevant law. Additionally, the Court has meticulously reviewed the entire administrative
record. Because the ALJ did not err in evaluating and weighing the opinions of Mr.
Yotter’s treating physicians, and any other error committed was harmless, the Court
finds that Mr. Yotter’s Motion should be DENIED.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
1992). If substantial evidence supports the Commissioner’s findings and the correct
legal standards were applied, the Commissioner’s decision stands and the plaintiff is not
entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v.

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Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). The ALJ’s failure to apply the correct legal standards or demonstrate
that he has done so is grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019
(10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A
court should meticulously review the entire record but should neither re-weigh the
evidence nor substitute its judgment for the Commissioner’s. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court’s review is limited to the Commissioner’s final
decision, 42 U.S.C. § 405(g), which is generally the ALJ’s decision, rather than the
Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s decision “is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting” it. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record must include “anything that may undercut or detract from the
ALJ’s findings in order to determine if the substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

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II.

Applicable Law and Sequential Evaluation Process
For purposes of disability insurance benefits, a claimant establishes a disability

when she is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2015), 42 U.S.C. § 1382c(a)(3)(A)
(2004); 20 C.F.R. § 416.905(a). In order to determine whether a claimant is disabled,
the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920.
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i–iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant
cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant is able to perform other
work in the national economy, considering the claimant’s RFC, age, education, and
work experience. Grogan, 399 F.3d at 1261.
III.

Background
Mr. Yotter alleged disability due to post-traumatic stress disorder (“PTSD”),

depression, anxiety, bipolar disorder, shoulder impingement/bursitis, hearing problems,
1

20 C.F.R. pt. 404, subpt. P, app. 1.

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right eye problems, gastrointestinal problems, and high blood pressure. (AR 208). At
step one, the ALJ determined Mr. Yotter did not engage in substantial gainful activity
between his alleged disability date and the last date he was insured. (AR 28). At step
two, the ALJ found Mr. Yotter has the following severe impairments: PTSD, bipolar II
disorder not otherwise specified, mood disorder not otherwise specified, left and right
shoulder and biceps tendinitis/bursitis, and lumbar disc herniation. Id.
At step three, the ALJ found none of Mr. Yotter’s impairments, either singly or in
combination, met or medically equaled a Listed impairment. (AR 29). Regarding Mr.
Yotter’s mental impairments, the ALJ found Mr. Yotter has only moderate impairments
in daily living, social functioning, and concentration, persistence, and pace, and no
prolonged episodes of decompensation. (AR 30-31). The ALJ focused on Mr. Yotter’s
own testimony, though he did note that two psychotherapists consistently described Mr.
Yotter as friendly, cooperative, candid, and actively engaged in therapy. (AR 30).
Prior to step four, the ALJ concluded Mr. Yotter has the residual functional
capacity to perform light work with the following limitations: Mr. Yotter may frequently
stoop, occasionally climb ladders, but never climb ropes or scaffolds; occasionally reach
overheard; and frequently reach front and laterally with his arms. (AR 32). As for
nonexertional impairments, Mr. Yotter can adjust to routine changes in work settings
and maintain concentration, persistence, and pace for two hours at a time with normal
breaks, but he is limited to understanding, remembering, and carrying out simple
instructions and making commensurate work-related decisions. Id. Finally, Mr. Yotter “is
able to interact occasionally with supervisors, co-workers, and the public.” Id.

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In formulating Mr. Yotter’s RFC, the ALJ exhaustively discussed the testimony at
the hearing and the medical evidence of record, including Mr. Yotter’s and his wife’s
statements, psychotherapy treatment notes from treating physicians Jolanta Gurdek,
M.D., and Karen Cusack, Ph.D., and the opinions of agency non-examining consultants.
(AR at 33-46). Ultimately, the ALJ gave the opinions of the agency consultants “great
weight” because they were consistent with the evidence as a whole. (AR 46). On the
other hand, the ALJ discounted Mr. Yotter’s and his wife’s statements because they
were not consistent with the record. (AR 35, 47).
Regarding Dr. Cusack, the ALJ gave her opinion limited weight after finding that
it was inconsistent with the medical record as a whole and her own treatment notes. Dr.
Cusack opined that Mr. Yotter is markedly limited in activities of daily living and social
functioning. (AR 47, 714-15). But, the ALJ noted that Dr. Cusack indicated Mr. Yotter
has only slight or moderate limitations elsewhere in her assessment. (AR 711, 713).
Further, Dr. Gurdek did not find marked limitations in daily living, and Dr. Cusack’s own
treatment notes showed Mr. Yotter improved his anger management, social isolation,
sleep patterns, hygiene, and daily activities. (AR 48). The ALJ supported these findings
with specific citation to Dr. Cusack’s notes. Id.
The ALJ also assigned Dr. Gurdek’s opinions limited weight because they were
inconsistent with the record as a whole and unsupported by her own notes. (AR 49).
First, the ALJ cited the fact that Dr. Gurdek’s and Dr. Cusack’s opinions conflicted
regarding which of Mr. Yotter’s impairments are marked. (AR 48). Second, the ALJ cited
Dr. Gurdek’s records that Mr. Yotter was frequently calm and cooperative, maintained
good eye contact, was clean and well groomed, and reported he was in a reasonably

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good mood. Id. Further, Dr. Gurdek described Mr. Yotter as logical and goal directed,
and his memory and cognition as “grossly intact.” Id. Although Dr. Gurdek assigned Mr.
Yotter low Global Assessment of Functioning scores, the ALJ found the scores relied in
part on Mr. Yotter’s relational stress with his nephew, which is not relevant to a disability
evaluation. (AR 48-49).
At step four, the ALJ determined Mr. Yotter is unable to perform his past relevant
work given his RFC. However, at step five, based on the VE’s testimony, the ALJ
concluded that Mr. Yotter can perform the jobs existing in significant numbers in the
national economy, namely photocopying machine operator, marker, and
housekeeper/cleaner, as those jobs are defined by the Dictionary of Occupational Titles
(“DOT”). (AR 50). The VE testified that a person of Mr. Yotter’s age, experience, and
RFC could perform the above jobs even with Mr. Yotter’s nonexertional impairments.
(AR 92-93). Accordingly, the ALJ held that Mr. Yotter was not disabled at any time
between his alleged onset date and the date he was last insured. (AR 51).
IV.

Analysis
In his Motion, Mr. Yotter claims the ALJ committed reversible error by: (1)

improperly evaluating and weighing the opinions of Dr. Cusack and Dr. Gurdek; (2)
failing to analyze Dr. Cusack’s and Dr. Gurdek’s opinions at step three; (3) failing to
incorporate the state agency non-examining consultants’ opinions into Mr. Yotter’s RFC;
and (4) improperly questioning the VE about “occasional” interaction with supervisors,
coworkers, and the public. (Doc. 17 at 2). The Commissioner first responds that the ALJ
properly evaluated, weighed, and discounted Dr. Cusack’s and Dr. Gurdek’s opinions.
(Doc. 20 at 4-13). The Commissioner concedes error regarding the state agency

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consultants, but she argues the error is harmless. Id. at 13-16. Finally, the
Commissioner denies that the ALJ’s question was improper. Id. at 16-18.
1. Whether the ALJ erred in considering and weighing Dr. Cusack’s and Dr.
Gurdek’s Opinions
At step four, the ALJ gave both Dr. Cusack’s and Dr. Gurdek’s opinions limited
weight because they were inconsistent with the record and unsupported by their own
treatment notes. (AR 47-49). Mr. Yotter argues the ALJ did so without supporting his
decision with adequate reasoning or analysis. (Doc. 14 at 13-19). The Commissioner
responds that, on the contrary, the ALJ rejected those opinions for good reasons that
are supported by the record. (Doc. 20 at 8-13).
ALJs must evaluate and weigh every medical opinion in the record. 20 C.F.R. §
416.927(c); see Social Security Ruling “SSR” 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
In deciding how much weight to give a source’s opinion, the ALJ must consider the
length of the treatment relationship and frequency of examination, the nature and extent
of the treatment relationship, whether the opinion is supported by objective medical
evidence, and whether the opinion is consistent with the record as a whole. §
416.927(c)(1)-(6). An ALJ need not explicitly discuss every single factor. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Rather, the ALJ must “give good reasons”
that are “sufficiently specific to make clear to any subsequent reviewers the weight” he
gave to the opinion “and the reasons for that weight.” SSR 96-2P, 1996 WL 374188 at
*5 (July 2, 1996). Put differently, the reasons must be sufficiently specific to permit
meaningful review. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (“In the
absence of ALJ findings supported by specific weighing of the evidence, we cannot
assess whether relevant evidence adequately supports the ALJ's conclusion that
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appellant's impairments did not meet or equal any Listed Impairment, and whether he
applied the correct legal standards to arrive at that conclusion.”); Kepler v. Chater, 68
F.3d 387, 391-92 (10th Cir. 1995) (reversing where ALJ listed factors considered but not
specific evidence supporting conclusion).
In considering medical opinions, an “ALJ may not pick and choose which aspects
of an uncontradicted medical opinion to believe, relying on only those parts favorable to
a finding of nondisability.” Hamlin, 365 F.3d at 1219. Rather, if an ALJ’s “RFC
assessment conflicts with an opinion from a medical source, the [ALJ] must explain why
the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The
ALJ “must also explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” Id. Finally, the ALJ may not reject a
medical opinion based on lay speculations or assumptions, including an unsupported
assumption that a medical opinion is based solely on a claimant’s subjective
statements. See Langley, 373 F.3d at 1121.
a. Dr. Cusack’s Opinions
Mr. Yotter met Dr. Cusack for individual psychotherapy several times between
2013 and 2014. Although Mr. Yotter reported social isolation, anger issues, and
impaired sleep, and called the VA National Suicide Hotline while he was receiving
therapy, Dr. Cusack indicated Mr. Yotter was consistently well groomed, logical and
goal oriented, in no acute distress, and that he denied suicidal or homicidal ideation and
was actively engaged in his therapy. (AR 40-42). On a Medical Assessment of Ability to
do Work-Related Activities (Mental), Dr. Cusack opined that Mr. Yotter has only slight
limitations in understanding and memory and a mix of slight and moderate limitations in

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sustaining concentration and persistence. (AR 710). However, when evaluating whether
Mr. Yotter met a Listing impairment, Dr. Cusack indicated that Mr. Yotter is markedly
limited in activities of daily living and social functioning. (AR 712).
The ALJ first discounted Dr. Cusack’s opinions because they were inconsistent
with her own treatment notes. The ALJ noted that although Dr. Cusack opined that Mr.
Yotter is markedly limited in daily living and social functioning, Dr. Cusack indicated that
Mr. Yotter has only slight or moderate individual limitations. (AR 710-11). More
specifically, the ALJ found it inconsistent that Mr. Yotter is only slightly limited in his
ability to work in coordination with others, yet is supposedly markedly limited in social
functioning. (AR 47).
Further, the ALJ found Dr. Cusack’s opinions contradicted other evidence. The
ALJ emphasized Mr. Yotter’s testimony that he is his children’s primary caretaker, that
he performs daily chores, cares for his personal needs, and drove himself to
appointments. (AR 48). Also, Dr. Gurdek did not agree that Mr. Yotter is markedly
limited in performing daily activities. (AR 48, 714). Regarding social activities, the ALJ
again recalled Mr. Yotter’s testimony, this time that he attends family functions, visits his
father, interacts with his neighbor, and goes to church. (AR 48). Finally, the ALJ
considered Dr. Cusack’s notes and found that they generally showed improvement in
social interaction. Id.
On review, the Court finds the ALJ gave two specific reasons for discounting Dr.
Cusack’s opinion: inconsistency with the record and inconsistency with her treatment
notes. The ALJ cited specific records and testimony in support of these conclusions,
including Dr. Cusack’s own notes, Dr. Gurdek’s findings, and Mr. Yotter’s testimony.

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Accordingly, the ALJ provided good reasons, tied to the evidence, that are sufficiently
specific to permit meaningful review. The Court therefore finds that the ALJ did not err in
his consideration and weighing of Dr. Cusack’s opinion.
Mr. Yotter protests that his and his wife’s testimony “clarified” their statements
and that the ALJ should have deferred to Dr. Cusack because she was a treating
physician. (Doc. 17 at 16). Mr. Yotter says he only watches his children until his wife
comes home and that he must sometimes ask his neighbor for help picking up the
children. Id.; (AR 71, 78). The ALJ considered this evidence and gave Mr. Yotter and his
wife’s testimony limited weight as it was inconsistent with medical evidence. (AR 47). As
discussed, the Court may not substitute its judgment for the Commissioner’s based on
its own opinion of this evidence. Put differently, the Court may not reverse and remand
based on how it views Mr. Yotter’s and his wife’s statements and Dr. Cusack’s credibility
as a treating physician.
b. Dr. Grudek’s Opinions
On January 9, 2012, Mr. Yotter first visited Dr. Grudek for psychotherapy. (AR
607). Between January 2012 and May 2013, Mr. Yotter exhibited varying levels of anger
and anxiety, but his condition improved to the extent that he reported feeling good and
“happy.” (AR 35-39). Throughout these visits, Mr. Yotter was appropriately groomed,
logical and goal oriented, with memory and cognition “grossly intact.” Id. On July 19,
2013, Dr. Gurdek reported that Mr. Yotter had stopped taking his medications and
experienced a manic episode. (AR 40). After restarting his medication, Mr. Yotter
showed improvement. (AR 40-41). Ultimately, when assessing Mr. Yotter’s mental RFC,
Dr. Grudek opined that Mr. Yotter has slight to moderate limitations in understanding

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and memory and in sustained concentration and persistence. (AR 713). When
evaluating whether Mr. Yotter met a Listing impairment though, Dr. Grudek opined that
Mr. Yotter has marked limitations in maintaining social functioning, and marked
difficulties in concentration, persistence, and pace. (AR 714-15).
In his decision, the ALJ considered Dr. Gurdek’s opinions and assigned them low
weight as they were inconsistent with her RFC assessment and inconsistent with her
own treatment notes. As discussed, Dr. Gurdek noted only slight or moderate limitations
in understanding, memory, and sustained concentration in her RFC assessment, and
the ALJ found that inconsistent with the marked limitations Dr. Gurdek checked
elsewhere. (AR 48). Regarding her treatment notes, the ALJ noted that Dr. Gurdek
regularly wrote that Mr. Yotter was calm, cooperative, clean and well-groomed, logical
and goal-oriented, and showed intact memory and cognition. Id. These findings did not
support marked limitations, according to the ALJ, and Dr. Gurdek’s opinions lacked
internal support because she did not specify what tests she ran to evaluate Mr. Yotter’s
mental functioning. Id. Finally, Dr. Gurdek’s opinion that Mr. Yotter is markedly limited in
concentration, persistence, and pace, conflicted with Dr. Cusack’s opinion that Mr.
Yotter was not markedly impaired in that area. Id.
Here again, the ALJ gave two specific reasons why he assigned Dr. Gurdek’s
opinion limited weight: it was inconsistent with her own notes and with other medical
evidence. Here, as before, the ALJ cited specific findings and inconsistencies in the
evidence and how Dr. Gurdek’s treatment notes did not support her findings of marked
limitations. Finally, the ALJ compared Dr. Cusack’s opinion with Dr. Gurdek’s and found
them incompatible. This is not a case where the ALJ stated Dr. Gurdek’s opinion was

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inconsistent with the record and left it at that. See Langley, 373 F.3d at 1119-23.
Accordingly, the Court finds the ALJ did not err in his consideration and rejection of Dr.
Gurdek’s opinion.
Mr. Yotter argues again that other evidence explains Dr. Gurdek’s findings.
Specifically, Mr. Yotter states his wife must remind him to groom himself, (Doc. 17 at
15), and that Mr. Yotter’s impairments are the reason for inconsistencies between Dr.
Gurdek’s findings and Dr. Cusack’s findings, (Doc. 21 at 3-4). As discussed, the Court
cannot substitute its judgment for the Commissioner’s, therefore the Court may not
reverse and remand based on Mr. Yotter’s explanations and rationale. Mr. Yotter also
argues that the ALJ failed to consider factors under 20 C.F.R. § 404.1527, including the
length and frequency of examination, the nature and extent of the treatment
relationship, consistency with the record as a whole, and whether psychiatry is Dr.
Gurdek’s specialty. (Doc. 17 at 15). But, an ALJ is not required to explicitly discuss
every factor under § 404.1527. Oldham, 509 F.3d at 1258. The Court therefore finds
that the ALJ did not err in considering and rejecting either Dr. Cusack or Dr. Gurdek’s
opinions.
2. Whether the ALJ erred at Step Three
Next, Mr. Yotter argues that the ALJ erred by failing to discuss Dr. Cusack and
Dr. Gurdek’s opinions at step three of the SEP. (Doc. 17 at 17-19). As discussed, Dr.
Cusack and Dr. Gurdek both indicated Mr. Yotter had marked limitations that satisfied
the Listing impairments. (AR 711-15). At step three, the ALJ only briefly mentioned Dr.
Cusack and Dr. Gurdek’s opinions, and he did not discuss their opinions as to Mr.

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Yotter’s marked limitations. (AR 30-31). Mr. Yotter claims the Court must reverse and
remand for the ALJ to consider this evidence at step three.
Although an ALJ is required to discuss medical evidence at step three, failure to
do so is harmless error where “an ALJ’s findings at other steps of the sequential
evaluation process may provide a proper basis for upholding a step three conclusion
that a claimant’s impairments do not meet or equal any listed impairment.” Fischer-Ross
v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). In Fischer-Ross, the ALJ erred by
failing to discuss evidence of a claimant’s impairments at step three, and the district
court reversed. Id. at 732. However, the ALJ thoroughly discussed the evidence at steps
later in his decision, and the Tenth Circuit found that analysis sufficient to find that the
claimant did not suffer a Listed impairment. Id. at 734-35. The Tenth Circuit held that
“where an ALJ provides detailed findings . . . that confirm rejection of the listings in a
manner readily reviewable” elsewhere in a decision, reversal is unnecessary. Id. at 734.
This case is indistinguishable from Fischer-Ross. In this case, the ALJ did not
discuss Dr. Cusack and Dr. Gurdek’s opinions regarding Mr. Yotter’s marked
impairments at step three. But, as discussed, the ALJ considered and rejected the
opinions at step four and five, just as the ALJ did in Fischer-Ross. The ALJ provided
detailed reasons and support for rejecting Dr. Cusack and Dr. Gurdek’s opinions,
therefore the Court finds the ALJ provided sufficient findings and analysis, and any error
at step three was harmless.
c. Whether the ALJ erred in failing to incorporate the opinions of Dr. Robinowitz
and Dr. Mohney
Mr. Yotter contends that the ALJ also erred by failing to incorporate all of the
opinions of state agency consultants Ralph Robinowitz, Ph.D., and Carol Mohney,
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Ph.D. (Doc. 17 at 19-21). Both doctors opined that Mr. Yotter is markedly limited in his
ability to interact appropriately with the general public. (AR 103, 118-19). Despite giving
these opinions great weight, the ALJ did not incorporate them into Mr. Yotter’s RFC.
(AR 32, 46). Instead, the ALJ wrote that Mr. Yotter is able to “interact occasionally with
supervisors, co-workers, and the public.” (AR 32).
The Commissioner concedes that the ALJ erred by failing to incorporate Mr.
Yotter’s marked limitation. (Doc. 20 at 15). But, she argues the error was harmless for
two reasons. First, the VE testified that an individual with a marked limitation in
interacting with the public may still perform the jobs she identified. (AR 91-92). Second,
the Commissioner contends the error was harmless based on the nine-digit
occupational code the DOT uses to identify a job. The fifth digit of the code for each job
the VE identified is “8”, and according to the Commissioner this indicates the jobs
require the lowest possible level of interpersonal interaction. (Doc. 20 at 15-16) (citing
Lane v. Colvin, 643 Fed. Appx. 766, 770 n.1 (10th Cir. 2016)). Thus, the Commissioner
argues Mr. Yotter was not prejudiced by the ALJ’s omission, and any error was
harmless.
In his Reply, Mr. Yotter only argues that the Commissioner is mistaken about the
fifth-digit of the occupational code. Mr. Yotter counters that the fifth digit represents the
type of interpersonal interaction involved in a job, not the frequency or amount of
interaction. (Doc. 21 at 4-8). For instance, jobs like “cafeteria attendant” and
“waiter/waitress” have a “7” as the fifth digit of their occupational codes, but they
obviously involve frequent interaction with the public. Id. at 7. Mr. Yotter does not
address the Commissioner’s argument about the VE’s testimony.

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At the hearing, Mr. Yotter’s attorney asked the VE whether a marked limitation in
ability to interact with the general public would rule out any of the jobs the VE identified.
(AR 91-92). The VE responded that the jobs she previously identified, photocopying
machine operator, marker, and housekeeper, “do not require interacting with the public,”
so even someone markedly limited in their ability to interact with the public could
perform those jobs. Id. In his decision, the ALJ found the VE’s testimony consistent with
the DOT and found Mr. Yotter could perform the three jobs the VE identified.
As discussed, the ALJ is required to discuss and weigh medical opinions in the
record. However, an ALJ’s failure to do so is harmless when an undiscussed opinion
does not conflict with the ALJ’s RFC. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1165-66
(10th Cir. 2012). Similarly, an ALJ’s failure to incorporate limitations into the RFC is
harmless error when the claimant could perform the jobs identified by the VE even if the
limitations were incorporated. See Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir.
2014); Lane v. Colvin, 643 Fed. Appx. 766, 769-70 (10th Cir. 2016) (unpublished). In
Mays, the Tenth Circuit assumed for the sake of argument that the ALJ failed to weigh
certain medical opinions. Mays, 739 F.3d at 579. Still, the court held the error was
harmless because nothing in the medical opinions prevented the claimant from
performing sedentary work. Id. In Lane, the ALJ did not incorporate a physician’s
opinion that a claimant could not have frequent or prolonged contact with supervisors
and coworkers. Lane, 643 Fed. Appx. at 769. Again, the Tenth Circuit held the error
harmless because the jobs the VE identified did not require frequent, prolonged contact
with others. Id. at 770.

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Here, the Commissioner admits the ALJ did not discuss or incorporate Dr.
Robinowitz’s and Dr. Mohney’s opinions that Mr. Yotter is markedly limited in his ability
to interact with the general public. Despite this error, the VE testified that an individual
who is so limited may still perform the jobs of marker, photocopying machine operator,
and housekeeper. Although Mr. Yotter disagrees with the Commissioner about the
meaning of the DOT occupational codes, he does not dispute the VE’s testimony. Given
that testimony and the precedent regarding harmless error, the Court finds the ALJ’s
failure to incorporate Mr. Yotter’s marked limitation is harmless. Even if the ALJ had
incorporated this marked limitation, Mr. Yotter would still be able to perform jobs existing
in significant numbers in the national economy.
d. Whether the ALJ erred by describing Mr. Yotter as limited to “occasional”
interaction with supervisors, coworkers, and the public
Finally, Mr. Yotter argues the ALJ impermissibly used the word “occasional” to
describe Mr. Yotter’s interactional limitations. (AR 32, 88). Mr. Yotter insists that the
word “occasional” has a technical meaning and may only be used to describe exertional
limitations, not social interactional limitations. (Doc. 17 at 21-22; Doc. 21 at 8-9). More
specifically, Mr. Yotter states that the DOT and Social Security Regulations (“SSRs”)
“do not endorse” the use of qualifiers like “frequent” or “occasional” when describing
how often a claimant can interact with supervisors, coworkers, and the public. (Doc. 17
at 21-22; Doc. 21 at 8-9). Because “occasional” may not be used to describe
interactional limitations, Mr. Yotter argues the VE’s testimony was unclear and
unreliable and may not constitute substantial evidence. (Doc. 17 at 21-22). The
Commissioner denies that the use of the word “occasional” is impermissible or caused
any confusion. (Doc. 20 at 17-18).
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At the hearing, the ALJ asked the VE to assume a hypothetical individual who, in
part, is able to interact only occasionally with supervisors, co-workers, and the public.
(AR 88). The VE stated that such an individual could not perform Mr. Yotter’s past work,
but that the individual would be able to perform other work. (AR 88-90). On crossexamination, Mr. Yotter’s attorney asked the VE to instead assume an individual who is
moderately limited in adapting to changes in the workplace, accepting instructions, and
responding to criticism from supervisors, and markedly limited in dealing with the
general public. (AR 91-92). These limitations reflect Dr. Mohney’s assessment. (AR 92).
As discussed, the VE answered that such an individual would be able to perform the
jobs identified. Id. In the end, the ALJ said in Mr. Yotter’s RFC that he is limited to
“occasionally” interacting “with supervisors, co-workers, and the public.” (AR 32).
As defined by SSRs, “occasionally” means “occurring from very little up to onethird of the time,” and generally “no more than 2 hours of an 8-hour workday.” SSR 8310, 1983 WL 31251, at *5 (Jan. 1, 1983) (unpublished); SSR 96-9p, 1996 WL 374185,
at *3 (July 2, 1996) (unpublished). “Occasional” is often used in conjunction with
physical limitations like lifting and carrying, pushing and pulling, and postural limitations.
See SSR 96-9p, 1996 WL 374185, at *6. However, Mr. Yotter has not cited any
authority forbidding ALJs from using “occasional” to describe how often claimants can
interact with others. In fact, the Tenth Circuit has repeatedly affirmed ALJs who limit a
claimant to occasional contact with supervisors, coworkers, and the public. See, e.g.,
Hackett v. Barnhart, 395 F.3d 1168, 1175-76 (10th Cir. 2005) (claimant limited to
“occasional interaction with coworkers” and no direct public contact); Chavez v. Colvin,
654 Fed. Appx. 374, 375 (10th Cir. 2016) (unpublished) (limiting claimant to “no

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interaction with the public, and only occasional and superficial contact with co-workers”);
Davison v. Colvin, 596 Fed. Appx. 675, 680 (10th Cir. 2014) (unpublished) (limiting
claimant to “occasional” interaction with supervisors and co-workers, and “no work
interaction with the public”).
Given this background, the Court finds no error in the ALJ’s question and RFC.
Mr. Yotter has not cited authority for the proposition that ALJs may not limit claimants to
“occasional” interaction with others, even if the DOT and SSRs do not explicitly condone
it. The VE did not express confusion, and Mr. Yotter did not object to the question.
Moreover, any error here would be harmless because the VE testified that an individual
with Mr. Yotter’s limitations can still perform the jobs she identified. Thus, even if the
ALJ tailored his question and RFC to Dr. Mohney’s assessment that Mr. Yotter is
markedly limited in his ability to interact with the general public, Mr. Yotter would still be
able to perform the jobs the VE identified.
V.

Conclusion

For the foregoing reasons, the Court finds that the ALJ did not err in considering
and weighing Dr. Cusack’s and Dr. Gurdek’s opinions or err by describing Mr. Yotter as
limited to “occasional” social contact. Although the ALJ erred by failing to incorporate all
of Dr. Robinowitz’s and Dr. Mohney’s opinions into Mr. Yotter’s RFC, the error was
harmless. IT IS THEREFORE ORDERED that Mr. Yotter’s Motion to Reverse and
Remand for a Rehearing with Supporting Memorandum, (Doc. 17), is DENIED.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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