Williamson v. Social Security Administration

Filing 35

ORDER by Magistrate Judge Kevin R. Sweazea denying 22 Motion to Remand to Agency.(sls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA GAE WILLIAMSON,
Plaintiff,
v.

No. 2:16-cv-827-KRS

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO REVERSE AND
REMAND
Plaintiff seeks review of the Commissioner’s determination that she is not disabled under
Title II or Title IV of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383c. With the
consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73(b), the Court has examined the administrative record as a whole and considered
Plaintiff’s Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for
Rehearing, with Supporting Memorandum, filed February 18, 2017 [Doc. No. 22], the
Commissioner’s response in opposition, filed May 31, 2017 [Doc. No. 32], and Plaintiff’s
subsequent reply, filed June 14, 2017 [Doc. No. 33]. Having so considered, the Court FINDS
and CONCLUDES that Plaintiff’s motion is not well-taken and should be denied.
I. PROCEDURAL BACKGROUND
In November of 2012, Plaintiff applied for Title II disability insurance benefits and Title
XVI supplemental security income, alleging that she had been disabled since September 29,
2012, due to a “bundle batch block,” fibromyalgia, arthritis, hypertension, and high cholesterol.
[Doc. No. 15-10, p. 14]. On January 7, 2013, it was determined that Plaintiff was not disabled

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and her claim was denied. [Doc. No. 15-6, p. 2]. This determination was affirmed on June 28,
2013 [Doc. No. 15-6, p. 8], and a subsequent hearing before an administrative law judge
(“ALJ”), held on October 27, 2014, again, ended in a denial. [Doc. No. 15-3, pp. 13-26]. The
ALJ’s decision became final when, on June 3, 2016, the Appeals Council denied Plaintiff’s
request for review. [Doc. No. 15-3, pp. 2-4].
II. STANDARD
Judicial review of the Commissioner’s decision is limited to determining whether the
findings of the ALJ are supported by substantial evidence. 42 U.S.C. §405(g); Hendron v.
Colvin, 767 F.3d 951, 954 (10th Cir. 2014). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted ). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (quotation omitted). The Court must examine
the record as a whole, “including anything that may undercut or detract from the ALJ's findings
in order to determine if the substantiality test has been met.” Id. Even so, it is not the function
of the Court to review Plaintiff’s claims de novo, and the Court may not reweigh the evidence or
substitute its judgment for that of the ALJ. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.
1994).
III. ANALYSIS
A. Disability Framework
“Disability,” as defined by the Social Security Act, is the inability “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

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last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A); §
423(d)(1)(A). The Act further adds that for the purposes of § 1382c(3)(A) and § 423(d)(1)(A):
an individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(3)(B); § 423(d)(2)(A).
When evaluating a disability claim under this standard, the ALJ employs a five-step
sequential process. 20 C.F.R. § 416.920. In the first four steps, the claimant must prove that he
or she (1) is not engaged in any substantial gainful activity; (2) has a severe physical or mental
impairment, or combination of impairments, that meets the twelve month duration requirement;
(3) has an impairment, or combination thereof, that meets or equals a listing in 20 C.F.R. pt. 404,
subpt. P, App.; and (4) is unable to engage in past relevant work. 20 C.F.R. § 416.920(4)(i)-(iv).
If the disability claim survives step four, the burden shifts to the ALJ to prove, at step five, that
the claimant is able to adjust to other jobs presently available in significant numbers in the
national economy. 20 C.F.R. § 416.920(4)(v). See also Wilson v. Astrue, 602 F.3d 1136, 1139
(10th Cir. 2010).
Steps four and five are based on an assessment of the claimant’s residual functional
capacity (“RFC”) which gauges “what the claimant is still functionally capable of doing on a
regular and continuing basis, despite his impairments.” Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988). See also 20 C.F.R. § 416.945(a)(1).

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B. The ALJ’s Determination
In the case at bar, ALJ Karen Wiedemann engaged in the sequential analysis set forth
above, first finding that Plaintiff had not engaged in substantial gainful activity since her alleged
onset date of September 29, 2012.1 At step two, ALJ Wiedemann determined that Plaintiff has
severe impairments in the form of bipolar disorder verses depressive disorder with generalized
anxiety, myalgia, and hypertension. [Doc. No. 15-3, p. 16]. At step three, she determined that
none of Plaintiff’s impairments—either alone or in combination—met or medically equaled the
severity of a listed impairment.
ALJ Wiedemann then carried out the required RFC assessment, finding that Plaintiff has
the residual functional capacity to perform light work “that is simple, repetitive, and routine in
nature, and involves use of simple judgment.” [Doc. No. 15-3, pp. 22-23]. ALJ Wiedemann
further determined that Plaintiff can sit for up to six hours of an eight hour workday, stand and/or
walk for up to six hours of an eight hour workday, and that “she is able to concentrate, persist,
and remain on task for two-hour blocks of time.” [Doc. No. 15-3, p. 23].
With this assessment at hand, ALJ Wiedemann then proceeded to step four where she
considered Plaintiff’s employment history in the food service industry. Ultimately, the ALJ
concluded that Plaintiff was able to perform her past relevant work as a fast food worker and
short order cook and, therefore, was not disabled. [Doc. No. 15-3, p. 25].
C. Challenges to the ALJ’s Determination
In support of her request for reversal and remand, Plaintiff argues that the ALJ (1)
improperly discounted the opinion of her nurse practitioner, Kim Devou; (2) inaccurately

1

ALJ Wiedemann also determined that Plaintiff met the insured status requirements of the Social Security Act
through June 30, 2017. [Doc. No. 15-3, p. 15].

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assessed her RFC; and (3) failed to engage in a proper vocational analysis prior to concluding
that she was capable of performing past relevant work.
1. Opinion Evidence of Nurse Practitioner Kim Devou
In October of 2012, Plaintiff began receiving psychiatric and counseling services from
Mental Health Resources, Inc. (“MHR”). [Doc. No. 15-23, p. 24]. Records submitted by MHR,
which span the course of two years, indicate that Plaintiff’s primary treatment provider was
Nurse Practitioner (“NP”) Kim Devou who, on or about October 17, 2014, completed a Mental
Residual Functional Capacity Questionnaire on behalf of Plaintiff. [Doc. No. 15-38, pp. 8-16].
In her assessment of Plaintiff’s functional capabilities, NP Devou noted her belief that
Plaintiff is disabled and unable to work, and expounded that Plaintiff has marked limitations in
several areas including, inter alia, her ability to remember work-like procedures; understand,
remember, and carry out detailed instructions; maintain attention and concentration for extended
periods of time; work appropriately with coworkers and supervisors; make simple work-related
decisions; perform scheduled activities which require regular attendance and punctuality; and
complete a normal workday/workweek without psychologically based interruptions or the need
for accommodations. [Doc. No. 15-38, pp. 12-15].
Upon review of the questionnaire, ALJ Wiedemann determined that it was inconsistent
“with the activity reports and mental status observations reflected in the progress notes from
MHR,” and thus assigned “little weight” to NP Devou’s opinion. [Doc. No. 15-3, p. 25]. ALJ
Wiedemann also noted that nurse practitioners are not “acceptable medical sources” as defined
by the Social Security Act. [Doc. No. 15-3, p. 25].
Plaintiff argues that NP Devou’s opinion as to her functional capacity is consistent with
“many findings in the treatment records” [Doc. No. 22, p. 17], and further contends that ALJ

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Wiedemann did not afford the opinion proper deference or consideration as “other source
evidence.” Neither argument has merit.
In regard to consistency, ALJ Wiedemann’s Decision contains multiple references to
Plaintiff’s treatment history with MHR and NP Devou. [Doc. No. 15-3, pp. 16-22, 25]. These
references include citations to NP Devou’s mental status observations which noted that Plaintiff
had a euthymic mood and a logical and organized thought process. [Doc. No. 15-3, pp. 17-19,
20, 22]. Additionally, ALJ Wiedemann’s discussion of the MHR evidence explains that Plaintiff
reported that she engaged in a variety of daily activities such as “arts and crafts, gardening,
travel…caring for…a friend with cancer…household cleaning in exchange for rent, doing
laundry for…income…school attendance, and participation in a sobriety support group.” [Doc.
No. 15-3, p. 22].
Plaintiff’s mental health struggles are also summarized in the unfavorable decision
underlying the case at bar; yet, ALJ Wiedemann weighed the evidence and determined that it
indicated only “mild restrictions” in daily living and social functioning and “moderate
limitations” in the areas of concentration, persistence, and pace. [Doc. No. 15-3, p. 22]. While
Plaintiff points to “many findings” [Doc. No. 22, p. 17] in the MHR records that support NP
Devou’s opinion evidence, ALJ Wiedemann “was entitled to resolve such evidentiary conflicts
and did so.” Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016).
In the second part of her argument, Plaintiff concedes that NP Devou is not an
“acceptable medical source” but contends, rather vaguely, that ALJ Wiedemann failed to
consider all of the regulatory factors found in 20 C.F.R. § 404.1527. Presumably,2 Plaintiff is
referring to the factors listed in 20 C.F.R. § 404.1527(c)(1)-(6) which detail what the

2

Plaintiff cites to 20 C.F.R. § 404.1527, without specification [Doc. No. 22, p. 18], as well as to 20 C.F.R. §
404.1527(d)(2) [Doc. No. 33, p.3] which is inapplicable.

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Commissioner considers in her evaluation of medical opinions. However, 20 C.F.R. §
404.1527(f)(1) makes clear that when weighing “other source” evidence, “not 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.” Id.

Further, consideration of “other source” evidence is guided by SSR 06-03P, 2006 WL
2329939 (August 9, 2006)3 which echoes 20 C.F.R. § 404.1527(f)(1) and explains:
The evaluation of an opinion from a medical source who is not an “acceptable
medical source” depends on the particular facts in each case. Each case must be
adjudicated on its own merits based on a consideration of the probative value of
the opinions and a weighing of all the evidence in that particular case.
SSR 06-03P, 2006 WL 2329939, at *5. SSR 06-03P additionally provides that “the adjudicator
generally should explain the weight given to opinions from these “other 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.” SSR 06-03P, 2006 WL 2329939, at
*6.
Here, the record indicates that ALJ Wiedemann weighed all of the evidence provided by
MHR before determining that “little weight” should be afforded to NP Devou’s opinion. In her
consideration of the evidence, ALJ Wiedemann documented Plaintiff’s relationship with NP
Devou [Doc. No. 15-3, pp. 16-19], and concluded that the nurse practitioner’s opinion was
inconsistent with the record. [Doc. No. 15-3, p. 25]. ALJ Wiedemann also noted that NP Devou
commented on physical conditions which appeared to be “beyond the scope of the nurse
practitioner’s evaluation and expertise at the mental health clinic.” [Doc. No. 15-3, p. 25]. These
explanations not only accord with SSR 06-03P, but they also demonstrate that ALJ Wiedemann

3

Rescinded by Federal Register Notice Vol. 82, No. 57, page 15263 effective March 27, 2017.

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took into account the factors found in 20 C.F.R. § 404.1527(c)(1)-(6). The Court is unswayed by
Plaintiff’s argument to the contrary.
2. RFC Assessment
Plaintiff next argues that ALJ Wiedemann’s RFC finding is both inaccurate and
incomplete. As grounds, Plaintiff contends that the RFC fails to include the mental limitations
identified by NP Devou, as well as physical limitations regarding her ability to perform
prolonged sitting, standing, or walking.
Having already determined that ALJ Wiedemann did not err in her weighting of NP
Devou’s opinion evidence, the Court finds that Plaintiff’s argument as to omitted mental
limitations is moot. In regard to any physical limitations, Plaintiff points to medical evidence
from Roosevelt General Hospital (“RGH”) which, she claims, “renders the ALJ’s RFC finding
that Ms. Williamson can perform prolonged sitting, standing, and walking unsupported by
substantial evidence, as it lends credence to her consistent complaints of pain and limitation.”
[Doc. No. 22, p.20]. The RGH evidence to which Plaintiff refers was not before ALJ
Wiedemann at the time she rendered her decision; however, it was submitted to the Appeals
Council on or about April 10, 2015, and thus is properly considered by the Court. O'Dell v.
Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Even so, the evidence does not serve to unseat ALJ
Wiedemann’s RFC determination.
Although the records supplied by RGH do convey that Plaintiff suffered from back pain
and a decreased range of joint motion, the treatment notes from Plaintiff’s various physical
examinations at the hospital also state that she has normal muscle strength and a “normal range
of motion without pain” in both her left and right lower extremities, as well as a normal gait and
station. [Doc. No. 15-44, pp. 10, 19, 30]. The RGH evidence additionally shows that Plaintiff

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received a corrective procedure in the form of a kyphoplasty on November 20, 2014, and an antiinflammatory steroid injection on January 15, 2015; the latter of which is said to have improved
her functionality. [Doc. No. 15-44, p. 9].
Further, in reviewing the medical evidence before her, ALJ Wiedemann referenced
multiple medical reports which reflected a “denial of musculoskeletal symptoms and/or [a]
normal musculoskeletal examination.” [Doc. No. 15-3, p. 24]. She also noted that Plaintiff
admitted to engaging in a variety of daily activities, including “frequent walking” and “walking
two miles on a regular basis for relaxation.” [Doc. No. 15-3, p. 22]. In addition, Plaintiff
testified that she was last employed as a waitress in January of 2014, and that this employment
ended, not because of any personal limitations, but because business slowed down and her
services were no longer needed. [Doc. No. 15-4, pp. 11-12]. See also Doc. No. 15-42, p.7
(noting that Plaintiff walks frequently and has no limitations).
In sum, while the RGH evidence contains support for Plaintiff’s back pain complaints, it
does not overwhelm the medical evidence ALJ Wiedemann used to support her RFC assessment
of Plaintiff. The RFC determination is supported by substantial evidence and the Court neither
may nor will substitute its judgment for that of the ALJ. Glass, 43 F.3d 1392, 1395 (10th Cir.
1994).
Plaintiff also claims that the record was underdeveloped in terms of her physical
impairments and asserts that ALJ Wiedemann was under a duty to order a consultative exam to
cure this deficiency. To this end, Plaintiff argues that the ALJ “rejected” the opinions of the
non-examining state agency physicians—leaving “no medical opinions on which to base her
RFC finding”—and failed to determine whether Plaintiff has fibromyalgia. [Doc. No. 22, pp.

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20-21]. Unfortunately, both of these arguments are undeveloped and unsupported as they
comprise nothing more than an assortment of statements followed by a few tenuous citations.
To the extent these claims can be analyzed, the Court notes that it has already determined
that Plaintiff’s RFC is supported by substantial evidence, rendering the first half of Plaintiff’s
argument moot. See supra pp. 8-9. With reference to the second half of the argument, Plaintiff
states that ALJ Wiedemann had a “duty” to order a consultative examination because of an
“ambiguity in the record” as to whether Plaintiff with diagnosed with fibromyalgia. [Doc. No.
22, p. 21]. Ambiguity, however, is not the standard. Flaherty v. Astrue, 515 F.3d 1067, 1072
(10th Cir. 2007) (explaining that “conflict or ambiguity in the record” is not what triggers an
ALJ’s duty to develop the record). Rather, “the claimant has the burden to make sure there is, in
the record, evidence sufficient to suggest a reasonable possibility that a severe impairment
exists.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). It is not until this burden is
met that the ALJ’s duty arises. Further, “the mere presence of a condition is not sufficient to
make a step-two [severity] showing.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)
(quotation omitted) (alteration in original).
In the case at bar, Plaintiff does not contend that there is evidence in the record sufficient
to warrant further investigation into her claim of disabling fibromyalgia. Yet, even if Plaintiff
had made a more apt argument, her claim would fail. ALJ Wiedemann considered the evidence
of record and determined that it did not support a diagnosis of fibromyalgia. In so determining,
she explained that references to the impairment “appear largely limited to unsubstantiated
history.” [Doc. No. 15-3, pp. 20-21]. And, as previously mentioned, ALJ Wiedemann found
that the records regarding Plaintiff’s physical health contained multiple normal musculoskeletal

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examinations as well as multiple denials of musculoskeletal symptoms. [Doc. 15-3, pp. 18, 19,
24].
In fact, the vast majority of non-historical medical references to fibromyalgia are found in
Plaintiff’s mental health records which, as noted by ALJ Wiedemann, are limited to Plaintiff’s
reports that Gabapentin—a prescription prescribed by Plaintiff’s mental health provider—
improved her “fibromyalgia” symptoms. [Doc. No. 15-3, pp 18, 20, 23, 24]. Accordingly, the
Court finds that substantial evidence supports ALJ Wiedemann’s determination that Plaintiff
does not have the severe impairment of fibromyalgia.
3. Vocational Analysis
Finally, Plaintiff argues that ALJ Wiedemann’s determination that she is able to return to
her past work as a short order cook (Dot. 313.374-014) or fast food worker (Dot. 311.472-010) is
contrary to the evidence. As to the position of short order cook, Plaintiff explains that it requires
skills which exceed her assessed RFC;4 a fact acknowledged by the vocational expert (“VE”)
who testified at her hearing. In regard to the job of fast food worker, Plaintiff claims that this
position requires a reasoning level of two,5 which is inconsistent with her limitation to simple
work, and a standing/walking component that exceeds her six hour limitation.
Assuming without deciding that Plaintiff’s limitations preclude her from working as a
short-order cook, substantial evidence supports ALJ Wiedemann’s determination that Plaintiff is
capable of performing her past relevant work as a fast food worker. Plaintiff, correctly, asserts
that the occupation of fast food worker requires a reasoning level of two, see DICOT 311.472010, 1991 WL 672682 (January 1, 2016); however, she incorrectly suggests that this runs

4

In her response, the Commissioner appears to concede that the job requirements of a short order cook exceed
Plaintiff’s limitation to simple work. [Doc. No. 32, p. 22].
5
Plaintiff also states that this level of reasoning is inconsistent with NP Devou’s opinion evidence. [Doc. No. 22, p.
23]. Again, this matter is moot. See supra pp. 5-8.

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contrary to her limitation to simple work. While the Tenth Circuit has yet to definitively
determine whether a limitation to “simple work” equates with a specific reasoning level, it has
indicated that this limitation might be on par with a reasoning level of two. See Hackett v.
Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (finding an “apparent conflict” between jobs
requiring level-three reasoning and a claimant who is limited to simple, repetitive tasks, and
noting that the plaintiff’s RFC was more consistent with level-two reasoning).
Turning to the standing/walking requirements of the position, the Dictionary of
Occupational Titles (“DOT”) classifies the occupation of Fast Foods Worker as “light work.”
DICOT 311.472-010, 1991 WL 672682 (January 1, 2016). The Social Security Administration
(“SSA”) has clarified that “light work” involves “standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *7. Although
this requirement is consistent with Plaintiff’s assessed walking limitation, Plaintiff argues that it
is inconsistent with how the job is actually performed in the workplace. Specifically, Plaintiff
explains that in her past work in the food industry, she was only “allowed” to sit for less than
thirty minutes per workday. [Doc. No. 22, p. 23].
The SSA has specified that the DOT may be relied upon to define how a job is usually
performed in the national economy. SSR 82-61, 1982 WL 31387, at *2. And, “a claimant will
be found to be “not disabled” when it is determined that he or she retains the RFC to perform: 1.
The actual functional demands and job duties of a particular past relevant job; or 2. The
functional demands and job duties of the occupation as generally required by employers
throughout the national economy.” Id. See also Andrade v. Sec'y of Health & Human Servs.,
985 F.2d 1045, 1051 (10th Cir. 1993) (explaining that a “claimant bears the burden of proving
his inability to return to his particular former job and to his former occupation as that occupation

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is generally performed throughout the national economy.”); SSR 82-62, 1982 WL 31386, at *3
(“The RFC to meet the physical and mental demands of jobs a claimant has performed in the past
(either the specific job a claimant performed or the same kind of work as it is customarily
performed throughout the economy) is generally a sufficient basis for a finding of “not
disabled.””). Thus, even if Plaintiff’s past positions required more exertion than the DOT
description of Fast Foods Worker, she is able to perform the standing/walking functional
demands of the job as described by the DOT.
IV. CONCLUSION
For the reasons set forth above, the Court concludes that the Commissioner’s rejection of
Plaintiff’s disability claim was based upon substantial evidence. Accordingly, the decision must
stand. See Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992)
(“As long as substantial evidence supports the ALJ's determination, the Secretary's decision
stands”).
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Reverse and Remand to
Agency for Rehearing [Doc. No. 22] is hereby DENIED.

_____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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