Barefoot v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Steven P. Shreder affirming the decision of the ALJ. (rak, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SARAH BAREFOOT,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-21-223-SPS

OPINION AND ORDER
The claimant Sarah Barefoot requests judicial review pursuant to 42 U.S.C. § 405(g)
of the decision of the Commissioner of the Social Security Administration denying her
application for benefits under the Social Security Act. She appeals the decision of the
Commissioner and asserts that the Administrative Law Judge (“ALJ”) erred in determining
she was not disabled. For the reasons discussed below, the Commissioner’s decision is
hereby AFFIRMED.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security
Act “only if h[er] physical or mental impairment or impairments are of such severity that

1

On July 9, 2021, Kilolo Kijakazi became the Commissioner of Social Security. In accordance
with Fed. R. Civ. P. 25(d), Ms. Kijakazi is substituted for Andrew M. Saul as the Defendant in this
action.

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[s]he is not only unable to do h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy[.]” 42 U.S.C. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R.
§§ 404.1520, 416.920.2
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: (1) whether the decision
was supported by substantial evidence, and (2) whether the correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted].
The term “substantial evidence” requires “‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). However, the Court may not reweigh the evidence nor
substitute its discretion for that of the agency. See Casias v. Secretary of Health & Human

2

Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. Step two requires the claimant to establish
that she has a medically severe impairment (or combination of impairments) that significantly
limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the claimant is engaged
in substantial gainful activity, or if her impairment is not medically severe, disability benefits are
denied. At step three, the claimant’s impairment is compared with certain impairments listed in
20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant suffers from a listed impairment (or impairments
“medically equivalent” to one), she is determined to be disabled without further inquiry.
Otherwise, the evaluation proceeds to step four, where the claimant must establish that she lacks
the residual functional capacity (RFC) to return to her past relevant work. The burden then shifts
to the Commissioner to establish at step five that there is work existing in significant numbers in
the national economy that the claimant can perform, taking into account her age, education, work
experience, and RFC. Disability benefits are denied if the Commissioner shows that the claimant’s
impairment does not preclude alternative work. See generally Williams v. Bowen, 844 F.2d 748,
750-51 (10th Cir. 1988).

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Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the Court must review the
record as a whole, and “[t]he substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). See also Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was forty-six years old at the time of the administrative hearing (Tr.
40). She completed ninth grade and has previously worked as a fast-food worker (Tr. 29,
211). The claimant alleges she has been unable to work since February 28, 2019, due to
chronic obstructive pulmonary disease (COPD), anxiety, depression, herniated disc in her
back, scoliosis, and asthma (Tr. 19, 210).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on September 25, 2019. Her application was denied.
ALJ Larry D. Shepherd conducted an administrative hearing and determined that the
claimant was not disabled in a written decision dated March 25, 2021 (Tr. 17-30). The
Appeals Council denied review, so the ALJ’s decision represents the Commissioner’s final
decision for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform a range of sedentary
work as defined in 20 C.F.R. § 404.1567(a), i. e., that she could lift/carry ten pounds
frequently and less than ten pounds occasionally, sit for six hours in an eight-hour workday,
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and stand/walk for a least two hours in an eight-hour workday. Additionally, he found she
could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl, but that
she could not climb ladders/ropes/scaffolds and she must avoid concentrated exposure to
dusts, fumes, gases, odors, and poor ventilation. Finally, he found she needed a cane to
ambulate but that she could carry objects weighting up to ten pounds in her off hand (Tr.
22). The ALJ thus concluded that although the claimant could not return her past relevant
work, she was nevertheless not disabled because there was other work in the national
economy that she could perform, e. g., document preparer, filler, and semi-conductor
bonder (Tr. 29-30).
Review
The claimant’s sole contention of error is that the ALJ failed to properly evaluate
and account for a consultative examiner’s opinion as to her mental impairments. The Court
finds this contention unpersuasive for the following reasons, and the decision of the
Commissioner should therefore be affirmed.
The ALJ determined that the claimant had the severe impairments of morbid
obesity, degenerative disc disease, scoliosis, asthma, and COPD, as well as the nonsevere
impairments of right shoulder disorder, depressive disorder, anxiety, and learning disorder
(Tr. 19-20). The medical evidence related to the claimant’s mental impairments reflects
that the claimant reported a diagnosis of depression and anxiety back in 2015 when she
was seeking treatment for low back pain, and treatment notes regularly reflect major
depressive disorder and anxiety as part of her listed diagnoses (Tr. 296-297, 300-367).
From the alleged onset date of February 28, 2019 through September 30, 2019, treatment
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notes reflect the claimant reported anxiety and depression at an initial appointment on
March 18, 2019. At that time, she was diagnosed with a current mild episode of depressive
disorder, unspecified whether recurrent, and was prescribed medication (Tr. 431-435). She
was still taking her medication when she went in for an annual exam on June 12, 2019 but
denied anxiety or depressed mood at that time (Tr. 426-429). On May 1, 2020, the claimant
presented to Northwest Text Hospital with right shoulder pain. At that time, she denied
anxiety and depression, and she did not list her previous mental health medication on her
list of medications at that time (Tr. 524-525).
On March 6, 2020, Dr. Randall Rattan, Ph.D., conducted a mental status
examination of the claimant (Tr. 456-460). During the exam, she discussed her history of
medications for depression and anxiety and she endorsed historically experiencing a
depressed and anxious mood, but Dr. Rattan noted that her symptoms appeared to be in
partial remission due to a reported good work history and current social interests (Tr. 457).
Dr. Rattan described her mood as “depressed/anxious” and her fund of information and
remote memory were grossly intact, but her abstraction ability was likely below average
based on responses to simple and moderately difficult similarities items and her attention
and concentration were likewise likely below average (Tr. 459). He found she had fair
insight (Tr. 459). Dr. Rattan diagnosed the claimant with unspecified depressive disorder,
with anxiety, mild (partial treatment remission), and unspecified learning disorder
(provisional), and he gave her a guarded prognosis based on her presentation at that time
(Tr. 460). He found that the claimant appeared capable of carrying out basic instructions
and exhibiting contextually appropriate behavior, but he stated that the claimant might have
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some intermittent difficulty maintaining consistent employment from a mental health
standpoint based on her own description of psychological symptoms combined with her
functioning in various areas (Tr. 460).
State reviewing physicians determined initially and upon reconsideration that the
claimant’s mental impairments were nonsevere (Tr. 80-81, 93-95).
In his written opinion at step two, the ALJ found the claimant’s depression was
nonsevere and found either mild or no limitations in the four broad areas of mental
functioning, citing, inter alia, to the claimant’s own function report (Tr. 20-21). At step
four, the ALJ thoroughly summarized both the claimant’s administrative hearing testimony
as well as the medical evidence of record, including a lengthy recitation of Dr. Rattan’s
report (and even repeating his conclusions twice at step four, see Tr. 26, 28). As relevant
to this appeal, the ALJ noted the places in the record that included a diagnosis of depression
and/or anxiety and the one-time prescription for medication, and also noted that the
claimant had not undergone mental health treatment other than Dr. Rattan’s consultative
examination, nor had she been hospitalized for mental impairments (Tr. 23-29). The ALJ
further noted that the claimant had good eye contact and normal mental status examinations
in the records, and that there is no indication she provided insufficient effort during Dr.
Rattan’s exam (Tr. 27). The ALJ then found that the state reviewing physician opinions,
i. e., that the claimant’s mental impairments were not severe, were persuasive and
consistent with her lack of mental health treatment (Tr. 28). The ALJ particularly found
not persuasive the portion of Dr. Rattan’s assessment that the claimant might have some
intermittent difficulty maintaining consistent employment from a mental health standpoint,
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as it was not consistent with the overall lack of mental health treatment in the record (Tr.
28). As noted above, the RFC did not contain any limitations as to the claimant’s mental
impairments or the simplicity or complexity of work she could perform (Tr. 22). He then
concluded that the claimant was not disabled (Tr. 29-30).
Here, the claimant asserts that the ALJ’s reasons for rejecting Dr. Rattan’s opinion
are unsupported by the law. For claims filed on or after March 27, 2017, medical opinions
are evaluated pursuant to 20 C.F.R. § 416.920c. Under these rules, the ALJ does not “defer
or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s)[.]” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ evaluates the
persuasiveness of all medical opinions and prior administrative medical findings by
considering a list of factors. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The factors are:
(i) supportability, (ii) consistency, (iii) relationship with the claimant (including length of
treatment relationship, frequency of examinations, purpose and extent of treatment
relationship, and examining relationship), (iv) specialization, and (v) other factors that tend
to support or contradict a medical opinion or prior administrative finding (including, but
not limited to, “evidence showing a medical source has familiarity with the other evidence
in the claim or an understanding of our disability program’s policies and evidentiary
requirements.”). 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Supportability and consistency
are the most important factors and the ALJ must explain how both factors were considered.
See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Generally, the ALJ is not required to
explain how the other factors were considered. Id. However, when the ALJ finds that two
or more medical opinions or prior administrative findings on the same issue are equally
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well-supported and consistent with the record but are not exactly the same, the ALJ must
explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were
considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).
The Court finds that the ALJ’s treatment of Dr. Rattan’s opinion here was sufficient,
if sparse in analysis. At step four, the ALJ noted his assessment and findings repeatedly,
and discussed the persuasiveness of his opinion, including the claimant’s lack of treatment
history. On appeal, the claimant contends that this was error because a lack of treatment
history does not mean the impairment does not exist or that there are not limitations. She
cites to Grotendorst v. Astrue, 370 Fed. Appx. 879, 883-884 (10th Cir. 2010), when the
Tenth Circuit ruled it reversible error where the ALJ found the claimant’s mental
impairments were nonsevere and did not consider them at steps four and five in the RFC
determination. But here, the ALJ thoroughly considered Dr. Rattan’s opinion throughout
the sequential evaluation and gave reasons for not including further limitations in her RFC.
And the claimant has pointed to no medical documentation not addressed by the ALJ that
does provide further limitations. Thus, the ALJ’s opinion was sufficiently clear for the
Court to evaluate it. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (“The ALJ
provided good reasons in his decision for the weight he gave to the treating sources’
opinions. Nothing more was required in this case.”).
Furthermore, the Court notes that Dr. Rattan’s statement regarding the claimant
having intermittent difficulty maintaining consistent employment is based largely on the
claimant’s own description of psychological symptoms, which the ALJ found inconsistent
with the medical record and which finding is unchallenged on appeal. The Court therefore
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finds that the ALJ properly considered Dr. Rattan’s opinion, along with all the other
opinions in the record and in concert with the medical evidence, in accordance with the
proper standards. The Court finds that when all the evidence is taken into account, the
conclusion that the claimant could perform a limited range of sedentary work with the
aforementioned limitations is well supported by substantial evidence. The Court therefore
finds no error in the ALJ’s failure to include any additional limitations in the claimant’s
RFC. See, e. g., Best-Willie v. Colvin, 514 Fed. Appx. 728, 737 (10th Cir. 2013) (“Having
reasonably discounted the opinions of Drs. Hall and Charlat, the ALJ did not err in failing
to include additional limitations in her RFC assessment.”).
The claimant further asserts that even if the ALJ did properly consider Dr. Rattan’s
opinion, the unskilled jobs identified at step five do not account for Dr. Rattan’s limitation
of the claimant to basic instructions because the reasoning level (i. e., specific vocational
preparation (“SVP”)) of all three jobs identified (document preparer, DICOT § 249.587018, SVP 2, reasoning level 3; filler/stuffer, DICOT § 731.685-014, SVP 2, reasoning level
2; semiconductor bonder, DICOT § 726.685-066, SVP 2, reasoning level 2) is too high.
But the Court has already found that the ALJ did not err at step four in declining to include
additional limitations as to her mental impairments and the RFC included no reasoning
limitations. More importantly, the Court finds that a reasoning level of two is consistent
with performing simple tasks, although a reasoning level of three is not, and other courts
have reached the same conclusion. See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th
Cir. 2005) (“This level-two reasoning appears more consistent with Plaintiff’s RFC
[limiting her to simple and routine work tasks.]”); Stokes v. Astrue, 274 Fed. Appx. 675,
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684 (10th Cir. 2008) (“Ms. Stokes’ second argument is that the ALJ’s limitation to simple,
repetitive and routine work should be construed as a limitation to jobs with a reasoninglevel rating of one. We disagree.”). See also Couch v. Berryhill, 2017 WL 1194344, at *4
(E.D. Okla. March 13, 2017) (“In accordance with the court’s findings in Hackett, a
restriction to simple work is consistent with this reasoning level [of 2].”); Goleman v.
Colvin, 2016 WL 3556958, at *4 (W.D. Okla. May 6, 2016) (where RFC limited claimant
to “simple, routine, repetitive instructions,” [t]he ALJ properly relied on the jobs identified
by the VE with a reasoning level of two.”). Thus, even if the document preparer job were
eliminated for having a reasoning level of three, its identification at step five would be
harmless error because the filler/stuff and semiconductor bonder jobs would remain.
The ALJ specifically noted every medical record available in this case, gave reasons
for her RFC determination and ultimately found that the claimant was not disabled. See
Hill, 289 Fed. Appx. at 293 (“The ALJ provided an extensive discussion of the medical
record and the testimony in support of his RFC finding. We do not require an ALJ to point
to ‘specific, affirmative, medical evidence on the record as to each requirement of an
exertional work level before [he] can determine RFC within that category.’”) (quoting
Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)). This was “well within the
province of the ALJ.” Corber v. Massanari, 20 Fed. Appx. 816, 822 (10th Cir. 2001) (“The
final responsibility for determining RFC rests with the Commissioner, and because the
assessment is made based upon all the evidence in the record, not only the relevant medical
evidence, it is well within the province of the ALJ.”) (citations omitted). Accordingly, the
decision of the Commissioner should be affirmed.
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Conclusion
In summary, the Court finds that correct legal standards were applied by the ALJ,
and the decision of the Commissioner is therefore supported by substantial evidence. The
decision of the Commissioner of the Social Security Administration is accordingly hereby
AFFIRMED.
DATED this 1st day of August, 2022.

____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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