Reith v. Social Security Administration
Filing
15
OPINION AND ORDER by Magistrate Judge Steven P. Shreder AFFIRMING the decision of the ALJ. (pmb, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RANDALL K. REITH,
Plaintiff,
v.
MARTIN O’MALLEY, 1
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-24-CV-204-SPS
OPINION AND ORDER
The claimant Randall K. Reith, requests judicial review pursuant to 42 U.S.C. § 405(g) of
the denial of benefits by the Commissioner of the Social Security Administration. He appeals the
Commissioner’s decision and asserts the Administrative Law Judge (“ALJ”) erred in determining
he 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 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,
1
On December 20, 2023, Martin J. O’Malley became the Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Mr. O’Malley is substituted for Kilolo Kiakazi as the
Defendant in this action.
engage in any other kind of substantial gainful work which exists in the national economy[.]” Id.
§ 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
Section 405(g) limits the scope of judicial review of the Commissioner’s decision to two
inquiries: whether the decision was supported by substantial evidence and whether correct legal
standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial
evidence is “‘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)). See also Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The Court may not reweigh the evidence or substitute
its discretion for the Commissioner’s. See Casias v. Secretary of Health & Human Services, 933
F.2d 799, 800 (10th Cir. 1991). But 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.
2
Step one requires the claimant to establish that he is not engaged in substantial gainful activity.
Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (“RFC”) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).
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Claimant’s Background
Claimant was born on September 10, 1992, and was 29 years old on the date his application
was filed. (Tr. 24, 176).). He was 30 years old at the time of the administrative hearing. (Tr. 31).
He has completed the tenth grade and has past relevant work experience as a stock clerk, and as
an assistant manager. (Tr. 24).
Procedural History
Claimant applied for supplemental security income (SSI) under the Social Security Act
(Act) in June 2022. (Tr. 174-82). Although he alleged disability beginning in May 2020, he could
not receive benefits until after his 2022 SSI application date. See 20 C.F.R. § 416.335. His
applications were denied. ALJ Elisabeth McGee held an administrative hearing on September 6,
2023 (Tr. 31-65) and determined that Claimant was not disabled in a written decision dated
December 5, 2023. (Tr. 14-25). The Appeals Council denied review, so the ALJ’s written opinion
became the final decision of the Commissioner for purposes of appeal.
Decision of the Administrative Law Judge
The ALJ made her decision at step five of the sequential evaluation. At step two, the ALJ
found that Claimant had several severe impairments including vertigo, headaches, panic disorder
with agoraphobia, social phobia, and personality disorder. (Tr. 16). She also found Claimant had
nonsevere impairments of appendicitis, insomnia, and dextrocurvature of thoracolumbar spine.
(Tr. 17).
Next, she found that Claimant’s impairments did not meet a listing. (Tr. 17). At step four,
she found that Claimant retained the residual functional capacity (“RFC”) to a full range of work
at all exertional levels with the following qualifications:
no ladders, ropes, scaffolds, or unprotected heights; no bright
sunlight; office level noise (3) moderate; can understand, remember,
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and carry out simple, routine, repetitive tasks; respond to usual work
situations and routine work changes; able to interact appropriately
with supervisor; incidental social interaction with co-workers and
the general public.
(Tr. 18). The ALJ found that this RFC prevented Claimant from returning to any of his past
relevant work. (Tr. 24). Next, the ALJ proceeded to step five and determined that Claimant was
not disabled because there was other work that exists in significant numbers in the national
economy that he could perform. Id.
Review
Claimant asserts, inter alia, that he could not bend or stoop frequently due to non-severe
scoliosis, and that the ALJ improperly ignored the scoliosis in assessing his RFC. The relevant
medical evidence related to scoliosis includes the following: When Claimant went to the
emergency room for appendicitis in 2021, a CT scan incidentally revealed some scoliosis
(dextrocurvature) of his mid- to low back. (Tr. 336). In 2022, State agency medical consultants
William McAfee, M.D., and Walter Bell, M.D., reviewed this CT scan along with other evidence
and found no significant physical limitations. (Tr. 69, 76). Later records reflect normal physical
examination findings, no treatment for scoliosis, and no medical opinions indicating that Claimant
was limited by scoliosis, either alone or in combination with any other physical condition. (Tr.
426). At the September 2023 hearing, Claimant did not testify about any scoliosis or back issues.
The Court first addresses Claimant’s assertion that he cannot do the frequent bending and
stooping required to meet the medium-exertion physical demands of two of the three jobs the ALJ
relied on at step five, due to his non-severe scoliosis.
Claimant cites no medical evidence supporting any limitation with respect to bending,
stooping, or scoliosis. Nor does the record bear out any such limitations. Claimant’s scoliosis was
an incidental finding on an appendicitis-related CT scan. (Tr. 336). Two State agency physicians,
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Dr. McAfee and Dr. Bell, reviewed that CT scan along with other evidence and found no
significant physical limitations. (Tr. 69, 76). Claimant was not treated for scoliosis, his physical
examinations were normal, and none of his providers indicated that he was limited at all. (Tr. 426).
Based on this record, the ALJ did not need to include any limitations in the RFC with respect to
bending, stooping, or scoliosis. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (ALJ
was not required to include in the RFC assessment limitations which were not supported by the medical
record).
Moreover, Claimant’s attorney never suggested to the ALJ that additional testing was
required. (Tr. 53-54). “[I]n cases such as this one where the claimant was represented by counsel
at the hearing before the ALJ, the ALJ should ordinarily be entitled to rely on the claimant’s
counsel to structure and present claimant’s case in a way that the claimant’s claims are adequately
explored, and the ALJ may ordinarily require counsel to identify the issue or issues requiring
further development.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (quotation and
citation omitted); see also Tipton v. Comm’r of the Soc. Sec. Admin., No. CIV-20-359-KEW, 2023
WL 2525036, at *4 (E.D. Okla. Mar. 15, 2023) (“counsel did not request any additional
development of the record by the ALJ” (citations omitted)).
Claimant further asserts the ALJ improperly ignored his non-severe scoliosis in assessing
his RFC. However, the record demonstrates the ALJ adequately discharged her duty to consider
the non-severe scoliosis. The ALJ expressly acknowledged her obligation to “consider all of
[Claimant’s] impairments, including impairments that are not severe,” in assessing his RFC. (Tr.
16). The ALJ also specified that she found the scoliosis non-severe because “the medical evidence
of record as discussed below” did not reflect that it would cause more than mild work-related
limitations. (Tr. 17). In assessing Claimant’s RFC, the ALJ stated that it was based on “careful
consideration of the entire record” and “all symptoms.” (Tr. 18). See Flaherty v. Astrue, 515 F.3d
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1067, 1071 (10th Cir. 2007) (noting a general practice of “tak[ing] a lower tribunal at its word
when it declares that it has considered a matter.”). The ALJ then expressly omitted any scoliosisrelated limitations from the RFC finding and summarized the evidence, which did not indicate
symptoms, treatment, functional deficits, or work-related limitations due to the non-severe
scoliosis. (Tr. 19-22). Among other things, the ALJ emphasized that Claimant’s treatment had
been sporadic and conservative, and aside from some “mild to moderate adaptive [mental]
limitations,” his symptoms had been neither “persistent” nor “limiting.” (Tr. 21, 24). 20 C.F.R. §
416.929(c)(3)(v) (ALJ considers treatment). The ALJ discussed the medical opinions (Tr. 23),
which did not include any limitations related to scoliosis. The ALJ also emphasized that none of
Claimant’s providers had opined to any restrictions on his ability to work. (Tr. 24). 20 C.F.R. §
416.929(c)(4) (ALJ considers inconsistencies); Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995)
(fact that the claimant’s providers did not restrict him supported ALJ’s finding of non-disability).
As set forth above, the ALJ’s scoliosis-related findings are adequately supported and
articulated. The ALJ considered the possible limiting effects of Claimant’s non-severe scoliosis,
but found it did not warrant any additional limitations. Nothing more was required on this scant
record. See Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (when the medical evidence
does not conflict with an ALJ’s conclusion, “the need for express analysis is weakened”).
Therefore, the ALJ’s finding that the evidence she discussed in assessing Claimant’s RFC did not
establish any significant work-related limitation due to scoliosis is supported by the record.
Finally, Claimant alleges a conflict between his RFC limitation to simple, routine, and
repetitive tasks and information contained in the Dictionary of Occupational Titles (DOT)
regarding the GED Reasoning Level 2 rating of two of the three jobs the ALJ relied on at step five:
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night cleaner and merchandise marker. 3 To the extent the ALJ relied on GED Reasoning Level 2
occupations, this was not inconsistent with Claimant’ RFC limitation to simple, routine, and
repetitive tasks.
Claimant finished tenth grade and recently worked as an assistant store manager. (Tr. 200,
206). The DOT states that GED “embraces those aspects of education (formal and informal) which
are required of the worker for satisfactory job performance”), and that GED Reasoning Level 2
jobs involve “detailed but uninvolved written or oral instructions” and only “a few concrete
variables in or from standardized situations.” See DOT, App’x C, 1991 WL 688702.6. The Tenth
Circuit has made clear in both published and unpublished decisions that GED Reasoning Level 2
is consistent with simple, routine, and repetitive tasks. See, e.g., Hackett v. Barnhart, 395 F.3d
1168, 1176 (10th Cir. 2005) (finding that a limitation to simple, routine, and repetitive tasks
appeared consistent with GED Reasoning Level 2); Stokes v. Astrue, 274 F. App’x 675, 684 (10th
Cir. 2008) (rejecting argument that simple, routine, or repetitive tasks equates with a limitation to
jobs of GED Reasoning Level 1).
Therefore, because there is no conflict between an RFC for simple, repetitive, routine tasks
and information contained in the DOT regarding GED Reasoning Level 2 jobs, Claimant has not
shown legal error or inadequate support for the ALJ’s decision.
Conclusion
The Court finds that correct legal standards were applied by the ALJ, and substantial
evidence supports the ALJ’s finding that Claimant could do other work existing in significant
numbers in the national economy.
3
The third occupation the ALJ relied on, floor waxer, has a GED Reasoning Level of 1.
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Accordingly, the decision of the Commissioner is hereby AFFIRMED.
IT IS SO ORDERD this 24th day of October, 2024.
____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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