Stock v. Social Security Administration
Filing
28
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter denying 19 Motion to Remand to Agency (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SAMUEL STOCK, JR.,
Plaintiff,
v.
CV 18-0472 JHR
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Samuel Stock Jr.’s Motion to Reverse or Remand
the Administrative Agency Decision [Doc. 19], and Memorandum Brief in Support thereof [Doc.
20], filed October 15, 2018. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to the undersigned Magistrate Judge to conduct dispositive
proceedings in this matter, including the entry of final judgment. [Docs. 9, 17, 18]. Having studied
the parties’ positions, the relevant law, and the relevant portions of the Administrative Record
(“AR”),1 the Court denies Mr. Stock’s Motion for the reasons set forth below.
I)
INTRODUCTION
This Court’s institutional role is to ensure that the Commissioner’s decision to deny Social
Security benefits is supported by the law and substantial evidence. This standard is deferential; the
Court may neither reweigh evidence nor substitute its judgment for that of the Agency. In this case,
Mr. Stock argues that the ALJ assigned to his claim failed to accord proper weight to several
medical sources, resulting in unsupported findings at Step Three of the sequential evaluation
Documents 13 and 13-1 comprise the sealed Administrative Record. The Court cites to the Record’s internal
pagination, rather than CM/ECF document and page number.
1
1
process and a deficient residual functional capacity (“RFC”) finding. Mr. Stock also argues that
the ALJ’s findings at Step Five are unsupported by substantial evidence because they omit several
of his limitations and find that he can do work which is beyond his capacity. For these reasons,
Mr. Stock argues that his case must be remanded to the Administration for further proceedings.
The Court is not convinced that the ALJ erred. First, the Court finds the ALJ’s weighing
of the medical opinions in the record to be supported by law and substantial evidence. Thus, the
ALJ’s findings at Steps Three and Five, which rely on his analysis of those opinions, are also
supported by substantial evidence. This being the case, the Court rejects Mr. Stock’s position that
his residual functional capacity should have been more restrictive. Finally, Mr. Stock has cited
nothing in support of his position that he cannot perform the jobs identified by the ALJ here. For
these reasons, the Court must affirm the ALJ’s decision denying benefits.
II)
BACKGROUND
Mr. Stock filed an application with the Social Security Administration for supplemental
security income benefits under Title XVI of the Social Security Act on September 22, 2014. AR at
249-257. He initially alleged a disability onset date of November 30, 2013, due to “back
impairments, migraines, TBI, Anxiety [and] Bipolar,” AR at 250, but later moved to amend his
alleged disability onset date to the date of his application. AR at 179. The Administration denied
Mr. Stock’s claim initially and upon reconsideration, and he requested a de novo hearing before
an administrative law judge (“ALJ”). AR at 117-164.
ALJ Michael Leppala held an evidentiary hearing on February 16, 2017. AR at 35-94. On
June 16, 2017, the ALJ issued an unfavorable decision, finding that Mr. Stock has not been under
a disability from his alleged onset date through the date of his decision. AR at 12-34. In response,
Mr. Stock filed a “Request for Review of Hearing Decision/Order” on July 19, 2017. AR at 230-
2
248. After reviewing his case, the Appeals Council denied Mr. Stock’s request for review on May
7, 2018. AR at 1-6. As such, the ALJ’s decision became the final decision of the Commissioner.
Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review
the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that he is unable to engage in “any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §
416.905(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. § 416.920(a)(4).2
At Step One of the sequential evaluation process, the ALJ found that Mr. Stock has not
engaged in substantial gainful activity since his application date. AR at 17. At Step Two, he
determined that Mr. Stock has the severe impairments of “history of cerebral trauma, arthropathies,
migraines, obesity, gastrointestinal reflux disease (GERD), anxiety disorders, organic mental
disorders, and substance abuse disorders[.]” AR at 17. At Step Three, the ALJ concluded that Mr.
Stock’s impairments, individually and in combination, do not meet or medically equal the
2
The Tenth Circuit summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in a substantially
gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If not, the ALJ then decides
whether the claimant has a medically severe impairment at step two. Id. If so, at step three, the ALJ
determines whether the impairment is “equivalent to a condition ‘listed in the appendix of the
relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the claimant's
impairment prevents him from performing his past relevant work. Id. Even if so, the ALJ must
determine at step five whether the claimant has the RFC to “perform other work in the national
economy.” Id.
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regulatory “listings.” AR at 18-20. Specifically, the ALJ found that Mr. Stock meets neither Listing
1.02, 1.04, 11.03, 11.18, 12.02, 12.04, nor 12.06.
When a claimant does not meet a listed impairment, the ALJ must determine his residual
functional capacity (“RFC”). 20 C.F.R. § 416.920(e). “RFC is an administrative assessment of the
extent to which an individual’s medically determinable impairment(s), including any related
symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL
374184, at *2. “RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined
that Mr. Stock retains the RFC to:
perform light work as defined in 20 CFR 416.967(b) except the Claimant is capable
of lifting and/or carrying twenty pounds occasionally and ten pounds frequently,
standing or walking for a total of six hours in an eight-hour workday, and sitting
for a total of six hours in an eight-hour workday, all with normal work breaks. The
Claimant is further limited to occasionally climbing ramps and stairs, but never
climbing ladders, ropes, or scaffolds, frequently balancing, kneeling, crouching,
and crawling, and occasionally stooping. The Claimant must avoid concentrated
exposure to operational controls of moving machinery, unprotected heights, and
hazardous machinery. The Claimant has the capacity to understand, remember, and
carry out simple instructions, attend and concentrate for extended periods with
usual rest breaks, interact appropriately with others in the workplace, exercise
reasonable judgment with work-related tasks, and complete a routine workday
under normal supervision.
AR at 20.
Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational
Expert, the ALJ determined that Mr. Stock has no past relevant work. AR at 28. However, the ALJ
found that there are jobs that exist in significant numbers in the national economy that Mr. Stock
can perform, despite his limitations. AR at 28. Specifically, the ALJ determined that Mr. Stock
retains the functional capacity to work as an office helper, a cafeteria attendant, and a bakery
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worker. AR at 29. Accordingly, the ALJ determined that Mr. Stock is not disabled as defined in
the Social Security Act and denied benefits. AR at 33.
III)
LEGAL STANDARDS
This Court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal standards were
applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d
569, 571 (10th Cir. 2014)). “[I]n making this determination, [this Court] cannot reweigh the
evidence or substitute [its] judgment for the administrative law judge’s.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016). The Court must exercise “common sense” when determining whether
the substantial evidence standard has been met; if the Court can follow the ALJ’s reasoning, the
decision must stand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The standard
for a decision to be supported by substantial evidence is low. “‘Substantial evidence’ means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). “It requires more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
IV)
ANALYSIS
Mr. Stock argues that the ALJ’s decision in his case must be reversed because the ALJ
“failed to apply the correct legal standards for evaluation of medical evidence; … failed to make
a proper assessment at Step Three of the Sequential Evaluation Process under the mental Listings
of Impairments; and … failed to apply the criteria of Social Security Ruling 96-8p in his residual
functional capacity findings, entered findings not supported by the evidence, and relied on
vocational expert testimony based on an unsupported residual functional capacity.” [Doc. 20, p.8].
For the reasons that follow, the Court disagrees.
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A) The Court finds no error in the ALJ’s weighing of the medical opinions in the
record.
“It is the ALJ's duty to give consideration to all the medical opinions in the record. . . . He
must also discuss the weight he assigns to such opinions.” Keyes-Zachary, 695 F.3d at 1161 (cited
regulations omitted). Mr. Stock does not argue that the ALJ failed to comply with this requirement,
only that the ALJ should have given greater weight to certain providers. The Court is not
convinced.
i)
Angela Jones, PT
The first provider that Mr. Stock argues should have been given greater weight is Angela
Jones, PT. [See Doc. 20, pp. 8-10]. Ms. Jones assessed Mr. Stock’s functioning on April 12, 2016,
and completed a Questionnaire and Quantified Functional Capacity Evaluation describing his
abilities. See AR at 544-553.
In the Questionnaire, Ms. Jones indicated that Mr. Stock can sit, stand and walk for less
than one hour at a time. AR at 545. He can sit for a total of four hours in an eight-hour workday
and stand and walk for an hour each. AR at 545. He can lift and carry up to 25 pounds occasionally,
can occasionally use both hands for simple grasping repetitively and fine manipulation, but can
use neither foot for pushing and pulling of leg controls. AR at 545-546. He can occasionally bend,
squat, climb and reach, but can never crawl. AR at 546. Ms. Jones further indicated that Mr. Stock
can never be around unprotected heights and shouldn’t be around moving machinery. AR at 546.
However, Mr. Stock would have no problems with exposure to marked changes in temperature
and humidity, driving automotive equipment, or exposure to dust, fumes and gasses. AR at 546. In
response to the form’s request for the duration of the severity of Mr. Stock’s symptoms, Ms. Jones
notes that his problems started in 1988, got worse in “1994 with another MVA, 2013 hit with a
rock each time pain has gotten worse.” AR at 547. When asked how long she expected Mr. Stock’s
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conditions to be at this severity, Ms. Jones responded that “[t]his is a chronic pain condition that
has not improved. Functional ability is decreased. He has received PT in the past, the sessions
aggravated symptoms. He did not improve with PT.” AR at 547. Finally, Ms. Jones referred the
agency to her Quantified Functional Capacity Evaluation “for detailed functional ability.” AR at
548.
In her Quantified Functional Capacity Evaluation, Ms. Jones measured “the functional
status of Mr. Stock on Tuesday, April 12, 2016.” AR at 550. Mr. Stock was able to stand for five
minutes. AR at 550. He was able to sit for thirteen minutes. AR at 550. He was able to walk for 0.0
miles at 2 miles/hour. AR at 550. Mr. Stock has a maximum lifting capacity of 0.0 pounds from
waist to shoulder and 0.0 pounds from shoulder to overhead. AR at 550. However, Ms. Jones then
indicates that he has a maximum occasional lifting capacity of 25.0 pounds, which “places him
into the medium category for lifting capacity[.]” AR at 550. Mr. Stock demonstrated a pushing and
pulling capacity of 5.0 pounds, but was able to reach for objects in all directions with both arms.
AR at 550-551. He could not balance, climb up and down one flight of stairs, crouch, stoop, kneel,
or crawl. AR at 551. Given his abilities, Ms. Jones opined that in order for Mr. Stock “to
successfully return to work in the medium strength category the following job factors restrictions
must be met:”
No standing for more than 5 minutes continuously.
No sitting for more than 13 minutes continuously.
No walking at all. The patient could not walk at the minimum required speed.
No pushing more than 5 pounds.
No pulling more than 5 pounds.
No balancing activities.
No climbing stairs.
No crouching.
No stooping.
No Kneeling.
No crawling.
No pinching.
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AR at 552. Finally, Ms. Jones made the following statements in the “Clinician Comments” section
of the form:
He was in a MVA which has caused chronic pain. He has been unable to work since
2004 due to pain, discomfort and decrease in strength. Leaning over makes the pain
worse. He is constantly in pain, even holding a piece of paper can be hard. He will
drop paper to the floor frequently. After 2 minutes of standing he started to feel
uncomfortable, would reach back for table for brief support. He becomes shaky
after standing for 5 minutes. He has had frequent falls, legs have been giving out
on him. Reaching overhead will aggravate neck pain. Starts to fidget about 10
minute mark of sustained sitting. He avoids stairs. He was unable to walk at 2 mph,
1 mph was starting to feel to fast for him and that he would fall down. He reports
he even has a hard time walking around his house. At the end of pushing the cart
he felt shaky, weak at the ankles. He has decreased endurance, decreased strength
and poor balance. He had difficulty with most activities. Noticeable shortness of
breath with pushing cart 10 feet. He would struggle completing a full day of work.
He would need frequent rest breaks throughout each hour. He would also need the
ability to change positions as needed. He is unable to tolerate one position for more
than 10-15 minutes. Standing is limited to less then (sic) five minutes comfortably.
AR at 553.
Unfortunately for Mr. Stock, the ALJ afforded “little weight” to Ms. Jones’ opinions,
thereby effectively rejecting them. See Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)
(equating “according little weight to” an opinion with “effectively rejecting” it); Crowder v.
Colvin, 561 F. App’x 740, 742 (10th Cir. 2014) (citing Chapo for this proposition); Ringgold v.
Colvin, 644 F. App'x 841, 844 (10th Cir. 2016) (same). The same was the ALJ’s prerogative, so
long as his reasoning is supported by the law and substantial evidence. In this case, the ALJ
reasoned:
I afford little weight to the opinion of Ms. Jones, as her assessment is both internally
inconsistent and does not comport with other evidence of record. The statements in
the evaluation appear to rely heavily upon the Claimant’s self-report rather than the
Claimant’s actual physical capabilities. Ms. Jones stated that the Claimant could
lift and carry weight consistent with a medium exertion, however, she stated he
could never walk, balance, stoop, kneel, crouch, or crawl. She further stated that
the Claimant could only sit for thirteen minutes and walk for five minutes, which
is not consistent with the Claimant’s own testimony at the hearing. Finally, Ms.
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Jones is a physical therapist, and therefore is not an acceptable medical source as
defined by the Regulations.
AR at 25. Mr. Stock argues that these reasons are unsupported by law and substantial evidence, but
the Court disagrees.
Medical evidence and opinions from “other sources,” like physical therapists, are weighed
using the factors stated in 20 C.F.R. § 416.927(c)(1) through (c)(6). See 20 C.F.R. § 416.927(f)(1).
These factors include: (1) the examining relationship; (2) the treatment relationship; (3)
supportability of the opinion; (4) consistency of the medical opinion with the record as a whole;
(5) specialization; and, (6) any “other factors” “which tend to support or contradict the medical
opinion.” 20 C.F.R. § 416.927(c)(1)-(6); see also Crowder v. Colvin, 561 F. App’x 740, 744 (10th
Cir. 2014). “[N]ot every factor for weighing opinion evidence will apply in every case because the
evaluation of an opinion from a medical source who is not an acceptable medical source . . .
depends on the particular facts in each case.” 20 C.F.R. § 416.927(f)(1); see also SSR 06-03p,
2006 WL 2329939 at *4. “The adjudicator generally should explain the weight given to opinions
from these sources 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.” 20 C.F.R. § 404.1527(f)(2); SSR
06-03p, 2006 WL 2329939 at *6. Ultimately, “[i]n the case of a nonacceptable medical source like
[Ms. Jones], the ALJ’s decision is sufficient if it permits us to ‘follow the adjudicator’s
reasoning.’” Paulsen v. Colvin, 665 F. App’x 660, 666 (10th Cir. 2016) (quoting Keyes-Zachary,
695 F.3d at 1164, in turn quoting SSR 06-03p, 2006 WL 2329939 at *6). With these standards in
mind, the Court turns to the ALJ’s reasons.
The ALJ’s first reasons relate to the supportability of Ms. Jones’ opinions and the
consistency of her opinion with the record as a whole. Compare AR at 25 with 20 C.F.R. §§
9
416.927(c)(3), (c)(4). As such, the Court finds no legal error in their application. However, Mr.
Stock argues that “[t]here is no inconsistency between being able to lift, based largely on upper
extremity strength, and a very limited ability to stand or walk based on lumbar spine problems
including degenerative disc disease and stenosis.” [Doc. 20, p. 10]. Moreover, Mr. Stock argues
that “[t]he ALJ does not cite to specific contradictory evidence.” [Id.]. In other words, Ms. Stock
argues these reasons are unsupported by substantial evidence.
There is some merit to Mr. Stock’s latter argument. Generally, an ALJ should point to
specific medical evidence which is inconsistent with a particular opinion; otherwise, the Court is
left to guess which evidence the opinion is inconsistent with. See Lewis v. Berryhill, 680 F. App’x
646, 647 (10th Cir. 2017) (unpublished). Here, the ALJ could have been more explicit about what
evidence he found to be inconsistent with Ms. Jones’ opinion. However, the ALJ did not
completely omit discussion of the evidence he believed belied Ms. Jones’ position. Instead, prior
to his discussion of the medical opinions in the file the ALJ discussed all of the evidence of record
and, after making his weight assignments, the ALJ summarized the reasons for his RFC finding.
See AR at 20-27. While the ALJ acknowledged that there is objective medical evidence of an
underlying impairment in Mr. Stock’s medical records, the evidence showed “4/5 motor strength
of the lower extremities,” normal ambulation, gait, and posture, and normal muscle tone. See AR
at 27. The Court, therefore, finds that the ALJ’s determination that Ms. Jones’ opinion was
inconsistent with the rest of the record to be supported by substantial evidence.
However, even if this reason is ignored, the remainder of the ALJ’s reasons are supported
by substantial evidence. Again, this standard is not a high one. “Substantial evidence is more than
a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). For example, the
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Commissioner points out, and the Court agrees, that Ms. Jones’ opinion that Mr. Stock can lift and
carry 25 pounds occasionally and commensurate with “medium” work is inconsistent with her
opinion that Mr. Stock can never walk. [See Doc. 25, p. 8]. Under the regulations, “[m]edium work
involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also
do sedentary and light work.” 20 C.F.R. § 416.967(c). Light work, likewise,
involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless
there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. § 416.967(b) (emphasis added). Thus, if a claimant can perform medium or light work,
they can also carry out sedentary work. “Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other sedentary criteria are
met.” 20 C.F.R. § 416.967(a). In other words, all levels of work that Ms. Jones opined Mr. Stock
would be limited to require some degree of walking and standing. However, Ms. Jones was of the
opinion that Mr. Stock should never walk, yet that he could somehow carry 25 pounds
commensurate with medium work. As the Commissioner argues, the Dictionary of Occupational
Titles defines “carrying” as “[t]ransporting an object” and states that “[c]arrying most often is
evaluated in terms of duration, weight carried, and distance carried.” Compare [Doc. 25, p. 8] with
Dictionary of Occupational Titles, APPENDIX C - COMPONENTS OF THE DEFINITION
TRAILER, 1991 WL 688702 (emphasis added). The fact that carrying is evaluated in terms of the
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distance carried precludes Mr. Stock’s argument that there is no inconsistency between Ms. Jones’
opinion that he can occasionally carry 25 pounds but never walk.
There are also internal inconsistencies between Ms. Jones’ Questionnaire and her
Quantified Functional Capacity Evaluation. Compare AR at 544-547 with AR at 548-553. Most
notably, Ms. Jones’ Questionnaire responses indicate that Mr. Stock can walk and stand for a total
of one hour in an eight-hour day whereas her Quantified Functional Capacity Evaluation indicates
that walking is precluded. See id. Ms. Jones also indicated in her Questionnaire that Mr. Stock can
occasionally bend, squat and climb, but then stated that he could not climb stairs, crouch or stoop
in her Evaluation. See id. While these inconsistencies may not have been enough for the Court to
discount Ms. Jones opinion were it reviewing the evidence de novo, that is not the Court’s role.
Rather, because there is more than a scintilla of evidence supporting the ALJ’s reason, the Court
must affirm.
Mr. Stock does not address the ALJ’s other reasons for ascribing Ms. Jones’ opinion little
weight in his opening brief. [See Doc. 20, pp. 8-10]. While he does touch upon them in his Reply,
the Court is not convinced that the ALJ erred. For example, Mr. Stock never addresses the ALJ’s
contention that Ms. Jones appeared to rely on his subjective complaints when filling out either her
Questionnaire or Evaluation. However, this was an appropriate factor for the ALJ to consider, as
it touches upon the supportability of Ms. Jones’ opinion. See 20 C.F.R. § 416.927(c)(3). Likewise,
the ALJ appropriately considered the fact that Ms. Jones’ limitations were inconsistent with those
to which Mr. Stock testified. See 20 C.F.R. § 416.927(c)(4). At the hearing before the ALJ, Mr.
Stock explained that he can sit for about an hour, moving around, that he can stand for ten minutes
and can walk for half a block. AR at 63. Again, the question is whether there is substantial evidence
supporting the ALJ’s reason. Regardless of whether the Court would reach a different result were
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it reviewing this evidence de novo, it is simply not in a position to reweigh the evidence or
substitute its judgment for the ALJ’s.
Turning to the ALJ’s final reason (that Ms. Jones is not an acceptable medical source under
the regulations), Mr. Stock posits that under Social Security Ruling 06-3p, Ms. Jones’ opinion
warranted significant weight because it was consistent with other evidence in the record. [See Doc.
20, p. 9]. The Court rejects this argument, for two reasons. First, as discussed above, there is
substantial evidence supporting the ALJ’s determination that Ms. Jones’ opinions were
inconsistent with the evidence as a whole. Second, and more importantly, the ALJ’s reliance on
the fact that Ms. Jones is not an acceptable medical source was not misplaced. There is a distinction
in the regulations between “acceptable” medical sources and those that are not. See SSR 06-03p,
2006 WL 2329939 at *2. “‘Acceptable medical sources’ include licensed physicians,
psychologists, optometrists, podiatrists, and qualified speech-language pathologists.” Id. Any
other medical provider is referred to as an “other source.” Id. The distinction is “necessary”
because only “acceptable medical sources” can “establish the existence of a medically
determinable impairment,” give “medical opinions,”3 and be considered “treating sources4 . . .
whose medical opinions may be entitled to controlling weight.” Id. This is not to say that “other
sources” are unimportant. To the contrary, as the Commissioner recognized when promulgating
SSR 06-03p: “[w]ith the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not ‘acceptable medical sources’ . . . have
increasingly assumed a greater percentage of the treatment and evaluation functions previously
“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1).
3
“Treating source means your own acceptable medical source who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with you.” 20 C.F.R. §
416.927(a)(2).
4
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handled primarily by physicians and psychologists.” SSR 06-03p, 2006 WL 232939 at *3. As such,
while information from “other sources” “cannot establish the existence of a medically
determinable impairment . . . information from such ‘other sources’ may be based on special
knowledge of the individual and may provide insight into the severity of the impairment(s) and
how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL 2329939 at *2; see also
Carpenter v. Astrue, 537 F.3d 1264, 1267-68 (10th Cir. 2008) (explaining that while “other
sources” cannot diagnose an impairment, their opinions are relevant to “the questions of severity
and functionality”) (citing Frantz v. Astrue, 509 F.3d 1299, 1301-02 (10th Cir. 2007)); See also
Mounts v. Astrue, 479 F. App’x 860, 865 (10th Cir. 2012) (Other source “evidence can be
considered to show the severity of a claimant’s impairment and how it affects her ability to work.”).
To this end, Mr. Stock argues that “[g]iven the documentation of medical sources of the
existence of medically determinable impairments, PT Jones was qualified to render an opinion
regarding the severity of these impairments.” [Doc. 20, p. 9]. The Court does not disagree with
this statement in principle. However, it cannot agree that the ALJ was required to accept Ms. Jones’
opinion where he found it to be based on Mr. Stock’s subjective complaints, internally inconsistent,
and inconsistent with other record evidence. Rather, because he found it to be unsupported, the
ALJ acted within his discretion to discount Ms. Jones’ opinions. Compare 20 C.F.R. §
416.927(f)(1) (“[I]t may be appropriate to give more weight to the opinion of a medical source
who is not an acceptable medical source if he or she has seen the individual more often than the
treating source, has provided better supporting evidence and a better explanation for the opinion,
and the opinion is more consistent with the evidence as a whole.”).
14
ii)
State Agency Medical Consultants - Physical
As opposed to Ms. Jones, the ALJ gave “great weight” to the opinions of the State Agency
medical consultants, who reviewed Mr. Stock’s medical records and opined that he is capable of
performing light work. See AR at 25. Mr. Stock argues that the ALJ’s decision to do so was error,
because the State Agency consultants’ opinions predated Ms. Jones’ findings. [See Doc. 20, p. 10].
Mr. Stock therefore argues that the opinions of the State Agency consultants were “outdated” and
“certainly entitled to less weight than the opinions of Mr. Stock’s treating sources.” [Doc. 20, p.
11].
Mr. Stock’s argument was rejected in Tarpley v. Colvin, 601 Fed. Appx. 641 (10th Cir.
2015) (unpublished). There, the Tenth Circuit held that an ALJ did not err in affording significant
weight to the opinion of a non-treating agency physician, despite the fact that his opinion was
postdated by two other opinions from treating sources, where nothing in the later medical records
the claimant cited supported the disabling limitations two other doctors opined to or a material
change in the claimant’s condition that would render the state agency physician’s opinion stale.
See generally, id. at 644. The same is true here. In fact, Mr. Stock cites no evidence other than
Ms. Jones’ opinions that are inconsistent with the conclusions reached by the State Agency
consultants. [See Doc. 20, pp. 10-11; Doc. 26, p. 4]. However, as discussed above, the ALJ gave
good reasons for discounting Ms. Jones’ opinions. Likewise, the Court finds that the ALJ gave
good reasons for giving “great weight” to the State Agency consultants’ opinions.
The ALJ stated that he gave “great weight” to the opinions of the State Agency consultants
because:
they are consistent with the evidence of record. Although these doctors did not have
an opportunity to examine or treat the Claimant, their reports reflect a thorough
review of the record. The DDS doctors are familiar with the SSA disability
evaluation program, and evidence of record warrants that the undersigned give
15
great weight to their opinions, since these opinions are consistent with the
longitudinal review of the evidence of record.
AR at 25. These reasons touch upon the consistency of the opinions with the record as a whole as
well as their supportability. See 20 C.F.R. § 416.927(c)(3)-(4). Moreover, the ALJ’s reasoning
comports with 20 C.F.R. § 416.913a(b)(1), which states that such consultants’ opinions must be
considered in accordance with Section 416.927 of the regulations because “our Federal or State
agency medical or psychological consultants are highly qualified and experts in Social Security
disability evaluation.” 20 C.F.R. § 416.913a(b)(1). More to the point, besides pointing to Ms.
Jones’ opinion, Mr. Stock does not challenge the ALJ’s reasons for ascribing the consultants’
opinions great weight, and the Court finds them to be supported by substantial evidence. Compare
AR at 25 with AR at 137-143.
iii)
Robert Thoma, Ph.D.
Mr. Stock next asserts that the ALJ improperly weighed the opinion of Dr. Thoma, a
consultative psychological examiner who performed a neurophysiological evaluation of Mr. Stock
on July 18, 2012 and August 29, 2012, and issued a report on Aust 29, 2012. [See Doc. 20, pp. 1112]. As part of this evaluation, Dr. Thoma conducted:
•
•
•
•
•
•
•
•
•
a Clinical Interview
Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV)
Repeatable Battery for the Assessment of Neuropsychological Status (RBANS)
Trail Making Test, Parts A and B
Grip Strength Test
Finger Tapping Test
Grooved Pegboard
Beck Depression Inventory-Second Edition (BDI-II)
Personality Assessment Inventory (PAI)
AR at 364. After summarizing the findings of these tests in his Report, Dr. Thoma issued the
following “Summary/Impressions:”
16
Full scale intellectual ability was in the borderline range (FSIQ = 73). An estimate
of premorbid intellectual ability was in the average range, suggesting that a
significant global decline in FSIQ has occurred at some point in the past. His
performance on tests of attention, processing speed and working memory were all
in the mildly to moderately impaired range. Mr. Stock's performance on memory
tests was in the mildly impaired range overall, but performance on memory tests
was susceptible to distraction and disorganization, to the extent that both learning
and recall could become severely impaired at times. Consistent with this finding,
Mr. Stock's scores on tests of executive functioning were within expectation except
on tests of organization and planning, on which he evinced an impaired
performance. Verbal reasoning and verbal fluency were moderately impaired.
Visuospatial functions ranged from the average to low-average range.
AR at 368. Based on Mr. Stock’s clinical history, his own behavioral observations, and Mr. Stock’s
neurocognitive test results, Dr. Thoma diagnosed Mr. Stock with Cognitive Disorder NOS, Post
Traumatic Stress Disorder, Polysubstance Abuse and Dependence in full remission, Anxiety
Disorder NOS, and rule out diagnosis of Bipolar I Disorder. AR at 369.
The ALJ gave “some weight” to Dr. Thoma’s findings, neither rejecting them nor accepting
them in full. AR at 24. The ALJ reasoned:
The Claimant's attention span was noted to be in the mild to moderately impaired
range, and his working memory was mildly impaired.… While the clinical findings
of Dr. Thoma were generally consistent with the evidence, the evaluation itself is
quite remote, and therefore, his assessment lacks significant probative value.
Nonetheless, I find that Dr. Thoma's assessment is consistent with the ability of the
Claimant to understand, remember, and carry out simple instructions.
AR at 24. Mr. Stock attacks this reasoning, arguing, first, that “there is nothing in the record to
suggest that [his] IQ would improve,” rendering the ALJ’s reliance on the age of the opinion
misplaced. [Doc. 20, p. 12]. Mr. Stock then argues that if the ALJ found this testing to be too
remote, “he was obligated to order additional testing.” [Doc. 20, p. 12]. Finally, Mr. Stock argues
that “it is impossible to determined which portions of his opinion he accorded weight to, given the
lack of significant mental limitations in his mental residual functional capacity assessment.” [Id.].
The Court is not convinced.
17
First, the Court finds nothing improper in the ALJ’s consideration of the age of Dr.
Thoma’s opinion. See Maldonado v. Berryhill, CIV 16-0392 KBM, 2017 WL 2491528, at *5
(D.N.M. Apr. 26, 2017) (“[C]ommon sense dictates that an older opinion ought generally to give
way to a more recent one[.]”). Here, the ALJ weighed Dr. Thoma’s opinion after discussing all of
the evidence, including Mr. Stock’s more recent mental health treatment. See AR at 21-24. Mr.
Stock does not, and cannot, point to medical records in his more recent past which substantiate
greater restrictions that those Dr. Thoma opined to. [See Doc. 20, pp. 11-12; Doc. 26, pp. 4-5]. In
fact, substantial evidence supports the notion that Mr. Stock’s mental health improved over the
course of his treatment with Epoch Behavioral Healthcare. See, e.g., AR at 494 (As of July 15,
2015, Mr. Stock was “Med compliant, no side effects. Patient is saying his moods are stable, no
evidence of hypomania, depression or irritability. Sleeping well, and functioning at his best level.
No major PTSD symptoms and nightmares have subsided. ‘I worry, but it is not a big deal
anymore, and my ritualistic activities are minimal, my only problem is my back pain, that is killing
me.’”); see generally AR at 493-496. In other words, there is substantial evidence supporting the
ALJ’s reliance on the age of Dr. Thoma’s opinion, and the opinion’s age may permissibly be
considered an “other factor[] … which tend[s] to support or contradict the medical opinion.” 20
C.F.R. § 416.927(c)(6).
Turning to Mr. Stock’s argument that the ALJ should have ordered additional testing if he
found Dr. Thoma’s opinion to be remote, the Court notes that it was within the ALJ’s discretion
whether to order a consultative examination. See 20 C.F.R. § 416.919a; Hawkins v. Chater, 113
F.3d 1162, 1166 (10th Cir. 1997) (“[T]he Secretary has broad latitude in ordering consultative
examinations.”). Under the regulations and case law,
[a] consultative examination may be required if there is a direct conflict in the
medical evidence, the medical evidence is inconclusive, or “additional tests are
18
required to explain a diagnosis.” .... But there is no need for a consultative
examination when the ALJ has enough information to make a disability
determination…. And if the claimant's attorney does not request a consultative
examination, the ALJ has no duty to order one unless the need “is clearly
established in the record.”
Jazvin v. Colvin, 659 Fed. Appx. 487, 489 (10th Cir. 2016) (citations omitted). Here, the ALJ
ostensibly determined that he had enough information to make the disability determination.
Moreover, Mr. Stock’s attorney has never requested an additional consultative examination. In
these circumstances, the Court finds no error in the ALJ’s choice to issue a decision on the record
before him.5
This leaves Mr. Stock’s final argument, where he takes the position that the ALJ could not
have given “some” weight to Dr. Thoma’s opinion given the lack of mental restrictions in his RFC.
[See Doc. 20, p. 12]. The Court is not convinced. Contrary to Mr. Stock’s argument, the ALJ
limited him to understanding, remembering and carrying out simple instructions. AR at 20. This
was based on Dr. Thoma’s finding that Mr. Stock’s “attention span was noted to be in the mild to
moderately impaired range and his working memory was mildly impaired.” AR at 24. This
limitation is not the same as no restriction, and it comported with the State Agency’s findings at
the initial and reconsideration level. See AR at 127-28, 144. In sum, the Court is not convinced that
the ALJ erred in assigning only “some weight” to Dr. Thoma’s opinions.
5
In opposing this view, Mr. Stock relies on Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009), and Cooksey v.
Colvin, 605 F. App’x 735 (10th Cir. 2015) (unpublished). [See Doc. 20, p. 12]. However, the Court finds that these
cases actually support the ALJ’s decision here. See Wall, 561 F.3d at 1063 (Noting that “an ALJ's duty to develop the
record is not unqualified[,]” and ultimately concluding that the ALJ in that case did not err in further developing the
record as to the claimant’s mental impairment.); Cooksey, 605 F. App’x at 739 (concluding, based on Wall that the
claimant had not shown sufficient evidence of a mental condition to require further development of the evidence.)
19
iv)
Stephanie Ross, LISW
Mr. Stock argues next that the ALJ should have given greater weight to the opinion of his
treating therapist, Stephanie Ross, LISW. [See Doc. 20, pp. 12-14]. The ALJ effectively rejected
Ms. Ross’ opinions, rendered on September 26, 2014, by assigning them “little weight.” AR at 24.
The ALJ did so for the following reasons:
Stephanie Ross, a licensed social worker, completed a medical source questionnaire
that stated that due to the Claimant's affective disorder and anxiety, the Claimant's
symptoms resulted in a complete inability to function independently outside the
home. The Claimant would also have marked limitations in performing daily
activities, social functioning, maintaining concentration, persistence or pace, and
experienced repeated episodes of decompensation. Ms. Ross also stated that the
Claimant would have marked limitations in almost every area of understanding and
memory, to include remembering work-like procedures, understanding and
remembering detailed instructions, maintaining attention and concentration
performing activities in a schedule, sustaining a normal routine without special
supervision, and working in proximity or in coordination with others. The Claimant
also had marked limitations in almost every aspect of social interaction to include
interacting appropriately with the public, accepting instructions or criticism from
supervisors, and getting along with coworkers, as well as maintaining socially
appropriate behavior and basic standards of cleanliness. The Claimant also had
marked limitation in the ability to respond to changes in the work setting or
traveling in unfamiliar places or using public transportation. (Ex. Bl IF). I give little
weight to the opinion of Ms. Ross, as her statements in the medical source
statement are inconsistent with her own evaluation dated June 20, 2014. (Ex.
B2F). In this evaluation, Ms. Ross noted that the Claimant was calm, friendly, and
attentive. His affect was appropriate and his cognitive function was intact. The
Claimant's short and long-term memory were intact, as evidenced by his ability to
abstract and perform arithmetic calculations. His fund of knowledge and
vocabulary were in the normal range. (Ex. B2F). Ms. Ross did not provide any
explanation for the discrepancies in her evaluation and her medical source
opinion. In addition, I note that the clinical evaluation was performed for the
purpose of the Claimant's entry into Drug Court, and not to evaluate the
Claimant's disability claim. Finally, the medical source statement is also
inconsistent with the Claimant's mental health treating notes from Epoch
Behavioral Healthcare that state that the Claimant's mental health condition
improved with medication and therapy, and that the Claimant's condition was
stable. (Ex. B6F and BI0F). It is also noted that Ms. Ross is a licensed social
worker, and therefore is not an acceptable medical source according to the
Regulations. (20 CFR 404.1502, 404.1513, 416.902, and 416.913; HALLEX DI
22505.003). For the forgoing reasons, this opinion is afforded little weight.
20
AR at 24-25.
Initially, the Court notes that the ALJ’s reasons touch upon many of the regulatory factors,
described above, that pertain to medical opinions. For example, by discussing the opinion’s
inconsistency with Ms. Ross’ own intake notes, the ALJ touched upon the consistency of her
opinion with the record as a whole. See 20 C.F.R. § 416.927(c)(4). Likewise, the ALJ appropriately
considered how supported Ms. Ross’ opinion was in light of her prior findings, and the
discrepancies between the two. See 20 C.F.R. § 416.927(c)(3). Additionally, the fact that Ms. Ross
performed her evaluation for Mr. Stock’s entry into drug court, rather than for the purpose of his
disability claim, is a permissible “other factor” the ALJ could consider. See 20 C.F.R. §
416.927(c)(6). Finally, as discussed above, it is permissible for an ALJ to consider a sources’ lack
of specialization when weighing her opinion. See 20 C.F.R. § 416.927(c)(5).
Mr. Stock disagrees, arguing that the fact that the evaluation was performed for drug court
has “no bearing on the weight to be given to [Ms. Ross’] opinion.” [Doc. 20, p. 13]. For the reasons
stated above, the Court disagrees. However, even putting this reason aside, Mr. Stock has failed to
challenge the bulk of the ALJ’s rationale, which the Court finds to be supported by substantial
evidence. For example, Mr. Stock cannot argue that Ms. Ross’ initial assessment is inconsistent
with her mental health questionnaire. Compare AR at 372-373 with 511-518. Nor has Mr. Stock
shown that the ALJ’s finding that his mental health condition improved with medication and
therapy was unsupported by substantial evidence. See generally AR at 413-422, 489-510. Finally,
while the Court agrees in principle that the ALJ should not have rejected Ms. Ross’ opinions on
the ground that she is not an acceptable medical source, [see Doc. 20, p. 14], the Court finds no
reversible error where, as here, the ALJ’s reasoning is otherwise supported by substantial evidence.
21
v)
State Agency Medical Consultants - Mental
Mr. Stock’s final challenge to the ALJ’s weighing of the medical opinions in the record
attacks the ALJ’s decision to give “great weight” to the opinions of the State Agency psychological
consultants. [See Doc. 20, pp. 14-15]. These consultants reviewed Mr. Stock’s claim at the initial
and reconsideration stages, concluding that he “retains the capacity to understand, remember, and
carry out simple instructions; attend /concentrate for extended periods with usual breaks; interact
appropriately with others in the workplace; exercise reasonable judgment with work-related tasks;
and complete a routine workday under normal supervision.” AR at 128 (January 14, 2015 initial
denial), 144 (June 30, 2015 denial on reconsideration). The ALJ gave these consultants’ opinions
“great weight” because they were “consistent with the evidence of record” and “reflect a thorough
review of the record.” AR at 25. He further reasoned that the consultants were “familiar with the
SSA disability evaluation program[.]” AR at 25.
Mr. Stock’s attack on this reasoning does not specifically address the ALJ’s findings that
the consultants’ opinions reflected a thorough review of the record or that they were familiar with
the disability evaluation standards. [See Doc. 20, pp. 14-15; see generally Doc. 26]. Instead, he
posits that the consultants’ opinions were stale, because they did not consider Ms. Ross’
Questionnaire which opines that his symptoms result in marked impairments and meet the listings.
[Doc. 20, pp. 14-15]. However, Ms. Ross’ September 26, 2014 Questionnaire predated the
consultants’ conclusions at both the initial and reconsideration levels, which issued in 2015. AR at
128, 144. As such, it is not apparent to the Court that these consultants made their determinations
without reviewing the Ms. Ross’ records and Questionnaire. For example, at the initial level the
consultant relied on Ms. Ross’ initial evaluation of Mr. Stock and noted that the records had been
received on December 30, 2014. In other words, Mr. Stock’s argument that these consultants’
22
opinions should be disregarded because they did not consider Ms. Ross’ opinions amounts to
speculation.
B) The ALJ’s findings at Step Three are supported by substantial evidence.
Mr. Stock next argues that “[t]he ALJ committed reversible error in failing to find that the
claimant’s psychiatric impairments meet and/or equal the criteria of the mental Listings of
Impairments under § 12.02 – Organic Mental Disorders, § 12.04 – Affective Disorders, § 12.06 –
Anxiety Related Disorders, and § 12.08 – Personality Disorders.” [Doc. 20, p. 16]. In support, Mr.
Stock posits that “[t]he ALJ’s findings under the “B” criteria of the Listings (Tr. 19) were without
basis and reflect an inappropriate superimposition of his own findings over those of Mr. Stock’s
treating therapist [(Ms. Ross)].” [Id. (citation omitted)]. In her Response, the Commissioner points
out that the ALJ discounted Ms. Ross’ opinions, including her findings that Mr. Stock meets the
requirements of the Listings; thus, he was not required to accept them. [Doc. 25, p. 15]. The Court
finds that the Commissioner has the more persuasive argument.
“At step three, the [ALJ determines] ... whether the impairment is equivalent to one of a
number of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. If the impairment is listed and thus conclusively presumed to be
disabling, the claimant is entitled to benefits.” Lax, 489 F.3d at 1085 (internal citations, quotation
marks, and brackets omitted). In order to meet any of the Listings he complains about, Mr. Stock
had to satisfy the Paragraph B criteria. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. “Paragraph B
requires that a medically documented condition specified in Paragraph A results ‘in at least two of
the following: 1. marked restriction of activities of daily living; or 2. marked difficulties in
maintaining social functioning; or 3. marked difficulties in maintaining concentration, persistence,
23
or pace; or 4. repeated episodes of decompensation, each of extended duration.’” Davison v.
Colvin, 596 F. App’x 675, 677 (10th Cir. 2014) (unpublished).
In this case, the ALJ determined that Mr. Stock’s mental impairments do not cause at least
two “marked” limitations in the above categories, meaning the Paragraph B criteria were not
satisfied, and Mr. Stock’s conditions do not meet the Listings. AR at 20. The ALJ made this
determination based on Mr. Stock’s Function Report. Compare AR at 20 with AR at 287-294. As
noted, Mr. Stock does not take issue with these findings, other than to argue that Ms. Ross’
opinions should have resulted in the ALJ finding that he met the Listings. The Court is not
persuaded.
First, Mr. Stock has cited nothing to indicate that the ALJ erred in relying on his function
report when deciding whether he met a listing. See, e.g., Carver v. Colvin, 600 F. App’x 616, 620
(10th Cir. 2015) (unpublished); 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (“We will consider all
relevant evidence about your mental disorder and your daily functioning that we receive from you
and from people who know you.”). More importantly, Mr. Stock has not articulated how the ALJ
erred in effectively rejecting Ms. Ross’ opinions that he met the Listings at issue. In the absence
of Ms. Ross’ opinion, Mr. Stock has failed to adduce sufficient medical evidence showing that he
meets a listing. See Gallegos v. Colvin, 646 F. App’x 613, 617 (10th Cir. 2016) (unpublished); see
also Perez-Leeds v. Colvin, 596 Fed. Appx. 714, 717 (10th Cir. 2014) (unpublished)
(“Significantly, Ms. Perez–Leeds does not cite to any evidence related to her social functioning
that the ALJ failed to discuss and that would demonstrate she has a marked limitation in this
functional area.”). For these reasons, Mr. Stock has failed to meet his burden to show that the
ALJ’s findings at Step Three were unsupported by substantial evidence.
24
C) The ALJ’s RFC finding was supported by substantial evidence and the Court
finds no error in his Step Five findings.
Mr. Stock next asserts that the ALJ failed to include “multiple documented impairments”
in his RFC, resulting in an unsupported finding at Step Five. [See Doc. 20, pp. 18-22]. To the
contrary, argues the Commissioner, the ALJ included all of Mr. Stock’s supported limitations. [See
Doc. 25, p. 16]. Thus, the Commissioner argues that Mr. Stock’s argument amounts to rehashing
his disagreements with the weight given by the ALJ to the various medical opinions in the record
– specifically, Ms. Jones’ and Ms. Ross.’ [See id. at pp. 15-16]. The Court agrees with the
Commissioner. Mr. Stock’s argument is premised upon the findings by Ms. Jones and Ms. Ross,
both which were effectively rejected by the ALJ in this case, and upon Dr. Thoma’s report, which
the ALJ only gave “some” weight to. [See Doc. 20, pp. 18-22]. Mr. Stock offers no new reasons
why the ALJ erred in weighing these opinions, and the Court has already discussed why the ALJ’s
analysis was supported by the applicable legal standards and substantial evidence. The Court
cannot and will not reweigh the evidence. As such, the ALJ was not required to include additional
limitations in his RFC assessment, or in his hypothetical question to the vocational expert. See
Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) (“We have already rejected plaintiff's
challenges to the ALJ's RFC assessment. The ALJ propounded a hypothetical question to the VE
that included all the limitations the ALJ ultimately included in his RFC assessment. Therefore, the
VE's answer to that question provided a proper basis for the ALJ's disability decision.”).
D) Mr. Stock has cited nothing that indicates he cannot perform the jobs identified
by the ALJ.
Finally, based on a hyper-technical reading of the Dictionary of Occupational Titles, Mr.
Stock argues that his IQ scores “would restrict an individual to jobs with a GED Reasoning level
of ‘1’[.]” [Doc. 20, pp. 22-23]. Thus, he argues, he cannot perform two of the three jobs identified
25
by the vocational expert. [Id.]. Additionally, he argues that his IQ scores limit him to the lowest
General Learning and Verbal aptitudes required for jobs in the Dictionary, all of which are
exceeded by the jobs identified. [Id.]. As the Commissioner points out, Mr. Stock cites no legal or
evidentiary support for his assertion that his IQ scores limit him so. [See Doc. 25, p. 17].
The Court finds no error. As the Tenth Circuit has pointed out, “GED does not describe
specific mental or skill requirements of a particular job, but rather describes the general educational
background that makes an individual suitable for the job, broken into the divisions of Reasoning
Development, Mathematical Development and Language Development.” Anderson v. Colvin, 514
F. App’x 756, 764 (10th Cir. 2013) (unpublished). Here, even assuming that the ALJ erred in
including office helper and cafeteria attendant jobs in due to their slightly higher GED levels, see
DOT 239.567-010, 1991 WL 672232; DOT 311.677-010, 1991 WL 672694, he also identified a
third job – bakery worker – which comports with Mr. Stock’s limitations and which exists in
significant numbers in the national economy. See DOT 524.687-022, 1991 WL 674401; Raymond
v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). Moreover, as noted, Mr. Stock has cited no
authority or medical evidence indicating that his IQ scores limit his learning aptitudes to the lowest
possible level, as he argues.
V)
CONCLUSION
A claimant in a social security appeal faces an uphill climb. The Court is not permitted to
reweigh the evidence if an administrative finding is supported by substantial evidence, which is
more than a scintilla and less than a preponderance. Here, Mr. Stock has failed to meet his burden
to show that the ALJ’s weighing of the medical opinions in the record was unsupported by
substantial evidence. As such, the Court has little choice but to affirm the ALJ’s subsequent
findings, which are based primarily on the weight he assigned to these opinions.
26
Wherefore, IT IS THEREFORE ORDERED that Samuel Stock, Jr.’s Motion to Reverse
and Remand [Doc. 19] is DENIED and the decision of the Acting Commissioner is AFFIRMED.
______________________________
Jerry H. Ritter
U.S. Magistrate Judge
Presiding by Consent
27
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