Maldonado v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 22 Plaintiff's MOTION to Remand to Agency. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESUS J. MALDONADO,
CIV 16-0392 KBM
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand for Rehearing with Supporting Memorandum (Doc. 22), filed December 16,
2016. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the
parties have consented to me serving as the presiding judge and entering final
judgment. Doc. 12. Having reviewed the parties’ submissions, the relevant law, and the
relevant portions of the Administrative Record, the Court will deny the Motion.
Plaintiff is a 23 year old man with no physical impairments who works as his
mother’s paid caregiver (albeit at levels that do not reach substantial gainful activity). He
drives, watches TV, plays video games, and cares for his children without assistance.
See AR at 30-36. Yet, Plaintiff claims that he is disabled due to mental impairments.
The Social Security Administration disagreed, and denied him benefits. Plaintiff now
appeals to this Court, asserting that decision was in error because the Administrative
Effective January 20, 2017, Nancy A Berryhill became the Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A Berryhill is therefore substituted for former Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.
Law Judge (“ALJ”) that reviewed his claim failed to account for restrictions imposed by
three different medical consultants. As further explained below, however, the ALJ’s
analysis of these opinions conformed to the relevant regulations and case law.
Therefore, no error occurred, and this Court affirms the ALJ’s decision.
Plaintiff filed an application with the Social Security Administration for
supplemental security income under Title XVI of the Social Security Act on October 24,
2013. AR at 248-253.2 Plaintiff alleged a disability onset date of January 1, 2000, due to
“learning disability, depression, anger problems, ADHD, panic attacks, anxiety attacks,
[and] sleeping problems.” AR at 248, 146.
The agency denied Plaintiff’s claims initially and upon reconsideration, and he
requested a hearing. AR at 120, 141, 157. After a de novo hearing, ALJ Eric Weiss
issued an unfavorable decision on December 17, 2015. AR at 6-18. Plaintiff submitted a
Request for Review of ALJ Weiss’ decision to the Appeals Council, which the Council
denied on March 3, 2016. AR at 1-3. 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 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 12 months.” 42 U.S.C.
Documents 15-1 through 15-23 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.
§ 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); see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
At Step One of the process, the ALJ recognized that Plaintiff’s earnings for taking
care of his mother did not rise to the level of substantial gainful activity. AR at 11. At
Step Two, he determined that Plaintiff suffers from the severe impairments of “Affective
Disorder; Organic Brain Syndrome; Depressive Disorder; Anxiety Disorder; Learning
Disorder; Attention Deficit Hyperactivity Disorder (ADHD); Communication Disorder
[and] Borderline Intellectual Functioning.” AR at 11. At Step Three, the ALJ concluded
that Plaintiff’s impairments, individually and in combination, did not meet or medically
equal the regulatory “listings.” AR at 11-13.
When a claimant does not meet a listed impairment, the ALJ must determine his
residual functional capacity (“RFC”). 20 C.F.R. § 416.920(a)(4). RFC is a
multidimensional description of the work-related abilities a plaintiff retains in spite of his
medical impairments. 20 C.F.R. § 416.945(a)(1). In this case, the ALJ determined that
Plaintiff retains the RFC “to perform a full range of work at all exertional levels” with the
following non-exertional limitations:
The claimant is able to understand, remember, and carry out simple
instructions and make commensurate work related decisions, but not at a
production rate pace and in a work environment with few changes. He
may have occasional interaction with supervisors, co-workers and the
public. He is able to maintain concentration, persistence and pace for 2
hours at a time during the 8 hour workday with normal breaks.
AR at 13. As Plaintiff has no past relevant work under the regulations, the ALJ skipped
Step Four. At Step Five, relying upon the testimony of a vocational expert, the ALJ
found that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform despite his limitations. Specifically, the ALJ determined that Plaintiff
maintains the RFC to work as a Cleaner (DOT number 381.687-018), Cleaner and
Polisher (DOT number 709.687-010), or Dishwasher( DOT number 318.687-010). AR at
18. Accordingly, the ALJ determined that Plaintiff is not disabled, and denied benefits.
AR at 18.
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)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
However, in 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) (citation omitted).
Plaintiff asserts that the ALJ’s RFC finding was flawed because he failed to
properly evaluate the opinions of Donald Gucker, Ph.D., Eligio Padilla, Ph.D., and John
Owen, Ph.D. The Court addresses each in turn.
A) Dr. Gucker
After reviewing Plaintiff’s medical records, Dr. Gucker provided a non-examining
medical source opinion on March 5, 2014. In providing this opinion, Dr. Gucker filled out
a Mental Residual Functional Capacity Assessment (“MRFCA”). See AR at 114-17. The
MRFCA is a form used by the Social Security Administration, which is broken up into
three sections. See POMS DI 24510.060. “Section I is for recording summary
conclusions derived from the evidence in the file and directs that detailed explanation of
the degree of limitation for each category is to be recorded in Section III.” Carver v.
Colvin, 600 F. App’x 616, 618 (10th Cir. 2015) (unpublished) (internal quotation marks
omitted).3 The purpose of Section III is to state, among other things, “[t]he extent to
which the individual can still perform and sustain specific mental activities and mental
functions.” POMS DI 24510.061 (emphasis in original). Thus, “[i]t is the narrative written
by the psychiatrist or psychologist in Section III that adjudicators are to use in the
assessment of RFC.” Carver, 600 F. App’x at 619 (citation omitted); see also Nelson v.
Colvin, 655 F. App'x 626, 628 (10th Cir. 2016) (unpublished) (citing POMS, DI
25020.010 B.1). However, “if 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.” Carver,
600 F. App’x at 619.
In Section I of Plaintiff’s MRFCA, Dr. Gucker assessed certain marked and
moderate limitations on Plaintiff’s abilities. AR at 115-16. Dr. Gucker then summarized
his Section III findings as follows:
It appears that the consultants did not use the same MRFCA forms discussed in Carver v.
Colvin, 600 F. App’x 606 (10th Cir. 2015) (unpublished), which relied on POMS DI 24510.060.
However, the MRFCA forms used in this case contain the same rating system and four general
categories of limitations as special Form SSA-4934-F4-SUP and directed the consultants to
discuss Plaintiff’s mental capacities in narrative form. Thus, the MRFCA form is sufficiently
analogous to special Form SSA-4734-F4-SUP to allow the Court to determine whether, in
consideration of POMS DI 24510.060, the specific psychological limitations at issue should have
been included in the RFC. See Vanvakerides v. Colvin, CIV 14-0879 SCY, Doc. 25 at 11
(D.N.M. April 7, 2016).
Based on mental issues only, when treatment compliant and substance
free, claimant retains the capacity to understand, remember, and carry out
simple instructions, attend and concentrate sufficient to complete a routine
work day without significant psychologically-based symptoms; exercise
reasonable judgment; interact appropriately with coworkers; supervisors
and the general public on an incidental basis.
AR at 117. Plaintiff argues that Dr. Gucker’s Section III finding “does not address the
moderate limitations in the ability to maintain regular attendance, be punctual, work
without the need for special supervision, respond appropriately to work setting changes,
set realistic goals, or make plans independently of others.” Doc. 24 at 2.
The Plaintiff in Carver made a similar argument, which the Tenth Circuit rejected.
There, the medical consultant found a Section I moderate impairment on the plaintiff’s
ability to accept instructions and respond appropriately to supervisor criticism. Carver,
600 F. App’x at 619. The Tenth Circuit held that this impairment was adequately
encompassed in the provider’s Section III finding that the plaintiff could relate to
supervisors and peers on a superficial work basis and in a work scenario involving only
simple tasks with routine supervision. Id. The Court reaches the same result here.
As to Plaintiff’s impaired ability to maintain regular attendance, be punctual, and
work without the need for special supervision, Dr. Gucker found that he “retains the
capacity to . . . attend and concentrate sufficient to complete a routine work day without
significant psychologically-based symptoms[.]” While this Section III finding may not
appear to be specifically targeted at these Section I limitations, it must be remembered
that all of the individual limitations at issue come from a section of the MRFCA wherein
the provider is asked to “rate the individual’s sustained concentration and persistence
limitations.” See AR at 115; see also Smith v. Colvin, No. 15-CV-02563-RBJ, 2016 WL
7029835, at *4 (D. Colo. Dec. 2, 2016) (“These limitations both fall under the umbrella of
‘persistence’ restrictions.”). This section of the MRFCA concerns “[t]he individual's ability
to sustain ongoing mental performance for a full workday[.]” See POMS DI 24510.061
(B)(2)(a). Thus, Dr. Gucker’s Section III conclusion addressed the moderate
concentration and persistence limitations he found in Section I by finding that Plaintiff
retains the capacity to complete a full workday, despite those limitations. See Arguello
v. Berryhill, No. 15-CV-02392-REB, 2017 WL 514058, at *4 (D. Colo. Feb. 8, 2017)
(finding that an evaluator’s “conclusion that plaintiff could sustain ordinary work routines
and adapt to work-related situations address[ed]” moderate limitations in the “ability 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.”). As other courts have found, it is “significant that after
considering these specific limitations, Dr. [Gucker] nonetheless noted that [Plaintiff’s
medical records] reflected adequate persistence and pace.” Smith, 2016 WL 7029835,
A similar rationale applies to Plaintiff’s limitations on his ability to respond
appropriately to changes in the work setting and set realistic goals or make plans
independently of others. These limitations come from an area of the form entitled
“adaptation limitations.” AR at 116. “Adaptive functions reflect the individual's ability to
integrate other areas of functioning.” POMS DI 24510.061. Thus, “[t]he items in this
section pertain to the individual’s ability to: plan, respond to changes, deal appropriately
with mental demands (stress), avoid hazards and maintain safe behavior, follow rules,
adhere to schedules and to time constraints, and travel.” POMS DI 24510.061(B)(4)(A).
While he recognized that Plaintiff has moderate limitations in certain areas of
adaptation, Dr. Gucker’s Section III narrative reflects that Plaintiff retains the capacity to
“exercise reasonable judgment” in the work setting. AR at 117. This Section III finding is
consistent with the moderate limitations found in Section I because even an individual
who is moderately limited in his ability to respond appropriately to changes in the work
setting and set realistic goals or make plans independently of others is capable of
exercising “reasonable” judgment.4
Thus, Dr. Gucker’s additional explanation addressed the moderate limitations he
identified, and the ALJ did not err by giving “great weight” to his opinion.
Shifting his focus away from Dr. Gucker, Plaintiff argues that the ALJ erred by
failing to address “the assessed limitations in working within a schedule, being on time,
working without supervision, and setting realistic goals and making independent plans”
as stated in Section I of Dr. Gucker’s opinion. Doc. 22 at 6.5 However, in light of the
Court’s finding that Dr. Gucker’s Section III narrative adequately encompassed these
Section I limitations, the ALJ’s formulation of Plaintiff’s RFC was only required to reflect
the MRFCA’s conclusions. See Smith, 821 F.3d at 1269; Nelson, 655 F. App'x at 629. If
the ALJ’s RFC is compared with Dr. Gucker’s MRFCA it reflects those limitations he
identifies and is arguably more restrictive. Compare AR at 13 with AR at 117.
Accordingly, the Court reject’s Plaintiff’s argument that “[t]he ALJ failed to related his
RFC finding to Dr. Gucker’s opinion[.]” Doc. 24 at 3.
See REASONABLE, Black's Law Dictionary (10th ed. 2014) (“Fair, proper, or moderate under
the circumstances; sensible[.]”).
Plaintiff also argues that the ALJ “failed to explain why he limited Mr. Maldonado to occasional
interaction with the public when Dr. Gucker assessed an ability for incidental interaction.” Doc.
22 at 5. However, Plaintiffs abandons this argument in his Reply brief because he recognizes
that all three of the occupations adopted by the ALJ at Step Five “include no contact with the
general public.” Doc. 24 at 2.
Plaintiff finally contends that the ALJ misinterpreted Dr. Gucker’s opinion
because “Dr. Gucker limited Mr. Maldonado to simple work, not unskilled work.” Doc. 24
at 3. This argument fails for two reasons. First, the ALJ did not limit Plaintiff’s RFC to
unskilled work, he limited Plaintiff to “carry[ing] out simple instructions and mak[ing]
commensurate work related decisions[.]” See AR at 13. Thus, the ALJ parroted Dr.
Gucker’s Section III finding that Plaintiff “retains the capacity to understand, remember,
and carry out simple instructions.” AR at 117. Second, even assuming arguendo that
the ALJ had limited Plaintiff to unskilled work rather than simple work, Plaintiff does not
explain why this limitation would not comport with Dr. Gucker’s findings. See Vigil, 805
F.3d at 1204 (noting that unskilled work only requires understanding, remembering and
carrying out simple instructions and making simple work-related decisions (quoting SSR
96–9p, 1996 WL 374185, at *9)); Nelson, 655 F. App'x at 629 (“by limiting Ms. Nelson to
unskilled work, the ALJ effectively accounted for all the limitations noted in Section I of
Dr. Taber's evaluation.”). In other words, even if the ALJ had misinterpreted Dr.
Gucker’s opinion and restricted Plaintiff to “unskilled” rather than “simple” work, that
error would not affect the Court’s conclusion that the ALJ correctly evaluated and
applied Dr. Gucker’s opinion in evaluating Plaintiff’s case.
B) Dr. Padilla
Dr. Padilla performed a consultative psychological evaluation of Plaintiff on
March 22, 2010, at the administration’s request. See AR at 347. Dr. Padilla’s opinion is
therefore considered an “examining medical-source opinion.” Ringgold v. Colvin, 644 F.
App'x 841, 843 (10th Cir. 2016) (unpublished) (citing Chapo v. Astrue, 682 F.3d 1285,
1291 (10th Cir. 2012); 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1)). Such opinions are
entitled to more weight than a doctor’s opinion derived from a review of the medical
record and are given “particular consideration” under the regulations. See id. Dr. Padilla
diagnosed Plaintiff with Depressive Disorder NOS, Attention-Deficit/Hyperactivity
Disorder, Primarily Inattentive Type Communication Disorder NOS, and Borderline
Intellectual Functioning. AR at 352. Additionally, Dr. Padilla assessed Plaintiff with
certain marked and moderate limitations. AR at 353. The ALJ gave Dr. Padilla’s findings
“limited” weight because “it is an older report generated prior to [Plaintiff’s] filing date”
and because he found some of the limitations assessed by Dr. Padilla to be
“inconsistent with the updated evidence of functioning.” AR at 16. Plaintiff argues that
these two reasons were insufficient to discount Dr. Padilla’s opinion. Doc. 22 at 7.
The Court disagrees. “An ALJ must give ‘give consideration to all the medical
opinions in the record and discuss the weight he assigns to such opinions.’” Vigil, 805
F.3d at 1201-1202 (quoting Keyes-Zachary, 695 F.3d at 1164). When assessing a
medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 416.927(c) and
give good reasons for the weight he assigns to the opinion. See id. These factors
(1) the examining relationship between the medical source and the
claimant; (2) the treatment relationship between the source; (3) the
supportability of the source’s findings; (4) the consistency of the source’s
opinions “with the record as a whole”; (5) the source’s status as a
specialist, if applicable; and (6) other factors that tend to support or
contradict the opinion.
20 C.F.R. § 416.927(c)(1)-(6). Importantly, “not every factor for weighing opinion
evidence will apply in every case.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007) (quoting SSR 06–03p). Thus, an “ALJ need not explicitly discuss all the factors if
his decision is ‘sufficiently specific to make clear to any subsequent reviewers the
weight he gave to the medical opinion and the reasons for that weight.’” Rivera v.
Colvin, 629 F. App'x 842, 844 (10th Cir. 2015) (unpublished) (quoting Oldham, 509 F.3d
The ALJ’s first reason for discounting the opinion – its age – fits within final
category: that is, other factors which tend to contradict the opinion. While Plaintiff takes
issue with this reason, he cites nothing indicating it was improper. To the contrary,
common sense dictates that an older opinion ought generally to give way to a more
recent one, especially where the opinions are both from consultative examiners who
only evaluated Plaintiff on one occasion. See, e.g. Adams v. Comm'r of Soc. Sec.
Admin., No. 1:13-CV-01788, 2014 WL 4594738, at *10 (N.D. Ohio Sept. 15, 2014)
(“consistent with the regulations, the ALJ considered and sufficiently explained that he
was affording “little weight” Dr. Birney's opinion because of the age of the opinion as
well as the lack of supportability and consistency of Dr. Birney's opinion with new and
The ALJ’s second and related reason for discounting the opinion – that it was
“inconsistent with the updated evidence of functioning” – is also supported by the
record. Immediately after discussing Dr. Padilla’s opinion and deciding that he would
afford it limited weight, the ALJ addressed Dr. Owen’s 2014 opinion, effectively
comparing the two. See AR at 16. The ALJ summarized Dr. Padilla’s findings as to
Plaintiff’s limitations as follows: “Dr. Padilla determined that claimant exhibited marked
to moderate limitations with understanding and remembering instructions; sustained
concentration and task persistence; social interactions and adaptation.” AR at 16; see
AR at 353. The ALJ then compared these limitations with those assessed by Dr. Owen:
Dr. Owen opined the claimant exhibited only ‘mild to moderate’ difficulty
remembering very short and simple instructions; carrying out instructions
and interacting with supervisors. Dr. Owen further opined he had
moderate difficulty with understanding and remembering detailed or
complex instructions; attending and concentrating; persisting at tasks;
ability to work without supervision and adapting to changes in the
workplace. Lastly he opined the claimant had moderate to marked
difficulty with interacting with the public; interacting with coworkers and the
ability to use public transportation.
AR at 16; see AR at 435. Given that Plaintiff’s functioning improved between Dr. Padilla
and Dr. Owen’s opinions, the ALJ permissibly discounted Dr. Padilla’s on the ground
that it was inconsistent with Dr. Owen’s more recent opinion.
Moreover, throughout the ALJ’s RFC formulation he discussed Plaintiff’s
functioning as reflected in Plaintiff and his mother’s testimony, treatment records, and
function reports. As with Dr. Owen’s opinion, the ALJ could permissibly conclude that
this evidence reflected a higher degree of functioning on Plaintiff’s part than Dr. Padilla
found. For example, the ALJ summarized Plaintiff’s mother’s testimony as follows:
She stated the claimant lives with her and is her paid caregiver. He has
been her caregiver for a year. He throws out the trash, vacuums, sweeps,
prepares her meals and drives her to appointments or stores. He assists
her with getting up from her bed and from her chair. . . .
AR at 14. The ALJ continued by summarizing Plaintiff’s function report:
Function Reports maintain the claimant engages in personal care, eats
breakfast, watches television and plays with his children. He is able to
prepare simple meals, clean and do laundry. He is able to go out alone
and drive a car. He can pay bills and count change. He attends doctor
appointments. He has difficulty following written instructions, but is able to
follow spoken instructions. . . .
AR at 15. After reviewing this evidence the ALJ concluded that
It appears that despite his alleged impairments, he has engaged in a
somewhat normal level of daily activity and interaction. The physical and
mental capabilities required to performing (sic) many of the tasks
described above as well as the social interactions replicate those
necessary for obtaining and maintaining employment. Moreover, the
claimant is apparently able to care for young children at home, which can
be quite demanding both physically and emotionally, without any particular
Furthermore, driving a motor vehicle by himself, demonstrates that the
claimant has the physical ability to operate a vehicle and that he has the
mental capacities to comply with the applicably traffic regulations, and to
remember the directions to and from his desired locations.
AR at 15. The Court finds no fault with these conclusions, and they could permissibly be
used by the ALJ to discount Dr. Padilla’s findings. Finally, the ALJ could also properly
discount Dr. Padilla’s findings on the basis “that none of the claimant’s treating
physicians has indicated that he is unable to work, is limited to a degree that is more
restrictive than the residual functional capacity, or even that he has any work related
functional limitations.” AR at 15.
In sum, the Court finds that substantial evidence supports the ALJ’s decision to
discount Dr. Padilla’s opinion, and will not reverse the ALJ on that ground.
C) Dr. Owen
Like Dr. Padilla, Dr. Owen performed a consultative psychological examination of
Plaintiff at the Administration’s request. See AR at 433. The examination occurred on
February 19, 2014, and included a Mini-Mental State Examination, which assesses
cognitive impairment. AR at 433. As the ALJ notes, Plaintiff scored a 27 out of a
maximum of 30 points on the Examination. AR at 434. The ALJ gave “significant weight”
to Dr. Owen’s opinion due to Plaintiff’s score on the Examination. AR at 16.
Among other things, however, Dr. Owen assessed Plaintiff with a moderate to
marked difficulty in his ability to interact with the public and co-workers and moderate
difficulties in the areas of concentration and task persistence. AR at 435. Nevertheless,
the ALJ went on to find that Plaintiff’s “Function Reports and other evidence indicate
functioning is somewhat better than assessed.” AR at 16. Thus, while the ALJ gave
significant weight to Dr. Owen’s opinion, he implicitly discounted it to the extent that it is
inconsistent with Plaintiff’s RFC.
Plaintiff argues that, despite giving Dr. Owen’s opinion significant weight, the ALJ
“failed to explain why he only limited Mr. Maldonado to occasional interaction with the
public where Dr. Owen assessed a marked limitation. . . . He also did not explain why
he found no limitation in the ability to maintain concentration and persistence when Dr.
Owen assessed moderate limitations in those areas. . . . He also again failed to address
the limitation on the ability to work without supervision.” Doc. 22 at 8 (citations to the
record omitted). For these reasons, Plaintiff argues that the ALJ failed to comply with
SSR 96-8p. Doc. 22 at 8.
Arguably, however, SSR 96-8p actually supports the ALJ’s analysis. Pursuant to
it, “[t]he RFC assessment must always consider and address medical source opinions .
. . [and i]f the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL
374184 at *7. Here, assuming that the ALJ’s formulation of Plaintiff’s RFC conflicted
with Dr. Owen’s opinion,6 he provided a reason for deviating from it – because Plaintiff’s
The Commissioner argues that the RFC “is generally consistent with Dr. Owen’s opinion as it
accounts for the opined limitations,” but then goes on to concede that Dr. Owen’s finding of a
marked limitation on the ability to interact with the general public is “arguably inconsistent with
the RFC.” Doc. 23 at 10. The Court’s analysis assumes without deciding that the RFC is
inconsistent with Dr. Owen’s opinion. As discussed later in this opinion, however, the Court
agrees that any argument premised upon this alleged inconsistency would be “academic
because the actual jobs offered by the vocational expert do not involve interaction with the
public.” Doc. 23 at 10; see AR at 62 (where the vocational expert explains that “the middle three
numbers of the DOT’s for each of the three jobs, 687, suggests that the individual is working
independently with occasional contact or very little contact with the public.”).
Function Reports and other evidence in the record “indicate that functioning is
somewhat better than assessed” by Dr. Owen. AR at 16. Although the ALJ could have
provided greater specificity as to which evidence and Function Reports on which he
relied for this proposition, the failure to do so in this case does not require reversal or
As noted above, the ALJ expressly considered Plaintiff’s function reports and his
as well as his mother’s testimony in reaching the conclusion that “despite his alleged
impairments, [Plaintiff] has engaged in a somewhat normal level of daily activity and
interaction.” AR at 15. Indeed, the ALJ expressly noted that Plaintiff reported to Dr.
Owen he did well during his year-long employment as a night janitor. AR at 16. It was
therefore permissible for him to discount Dr. Owen’s opinion to the extent that it was
more restrictive than Plaintiff’s RFC. See 20 C.F.R. § 416.927(c)(4) (“Consistency.
Generally, the more consistent a medical opinion is with the record as a whole, the
more weight we will give to that medical opinion.”).
Finally, to the extent that the RFC could be seen as inconsistent with Dr. Owens’
finding of a moderate to marked difficulty in interacting with the public and co-workers,
all three jobs identified by the Vocational Expert do not require interaction with the
public and involve the least level of interaction with people (Code 8). See DOT
381.687-018 (Cleaner), DOT 709.687-010 (Cleaner and Polisher), and DOT 318.687010 (Dishwasher).
Plaintiff has failed to demonstrate that the ALJ committed reversible error in this
IT IS HEREBY ORDERED that Plaintiff’s motion to remand (Doc. 22) is denied.
The Court will enter a Final Order pursuant to Rule 58 of the Federal Rules of Civil
Procedure dismissing this action with prejudice.
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent
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