Philion v. Social Security Administration

Filing 25

OPINION AND ORDER by Magistrate Judge Paul J Cleary Affirming the Commissioner's decision (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

SHEILA K. PHILION,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,1
Defendant.

Case No. 12-CV-584-PJC

OPINION AND ORDER
Claimant, Sheila K. Philion (“Philion”), pursuant to 42 U.S.C. § 405(g), requests judicial
review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for disability insurance benefits pursuant to the Social
Security Act, 42 U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the
parties have consented to proceed before a United States Magistrate Judge. Any appeal of this
order will be directly to the Tenth Circuit Court of Appeals. Philion appeals the decision of the
Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred because the ALJ
incorrectly determined that Philion was not disabled. For the reasons discussed below, the Court
AFFIRMS the Commissioner’s decision.

1

Pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, the current Acting
Commissioner of the Social Security Administration, is substituted for Michael J. Astrue as
Defendant in this action. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Claimant’s Background2
Philion was 46 years old at the time of the hearing before the ALJ on March 1, 2011. (R.
31). Philion testified that she was 5 feet tall and weighed approximately 235 pounds. Id. She
had a high school education and two years of vocational training in hospitality careers. (R. 34).
Philion had done factory work, and she testified that she had sustained several workrelated injuries to her back and left shoulder that required surgery. (R. 33, 44-45, 47-48).
Philion testified that she had carpal tunnel surgeries in 2008 and 2009. (R. 47-49, 51). After
these surgeries, Philion had problems with her hands cramping and falling asleep. (R. 47, 51).
She was unable to make a tight grip. (R. 51). Philion testified that she did not go back to work
after her shoulder surgery in 2008, because she was afraid that she would re-injure her shoulder.
(R. 49).
Following her shoulder surgery, Philion had ongoing complaints of pain and numbness in
her shoulder. (R. 51, 54). She said that her shoulder pain radiated between her shoulder blades
and collarbone. Id. Philion testified that she had pain, stiffness, and tightness in her neck. (R.
54). Her neck and nerve pain made it difficult for her to sleep. (R. 54, 63). Philion’s pain
extended into her elbows and hands. (R. 55). She had difficulty raising both of her arms and
reaching with her left arm. (R. 51-52).
Philion testified that she experienced a tingling and burning sensation in her low back that
traveled down her leg and into her right knee. (R. 54). She experienced back spasms while
sitting or standing. Id. The spasms in her back created a shocking sensation when she sat down.

2

The Court does not include any factual discussion of mental impairments of Philion
because she did not assert any error relating to the ALJ’s finding that her mental impairments
were nonsevere.
2

Id. She had swelling in her left knee that occasionally radiated down to her ankle. (R. 55). Her
knee occasionally went out from under her. Id. She sometimes felt as though she were going to
fall over when she was standing. Id. Philion testified that her doctor recommended that she have
surgery on her knee and on her back, but she was afraid to have any more surgeries. (R. 49-50).
Philion was prescribed Neurontin for her nerve pain, and she testified that it caused memory
problems. (R. 40-41).
Regarding her activities of daily living, Philion testified that she was able to cook, take
care of her eight-year-old son, drive, and do light house cleaning. (R. 58-62). Her daughter did
most of the grocery shopping. (R. 61). Philion’s social activities included visiting with her
family and attending church services. (R. 59, 62-63). She had difficulty washing her hair and
putting on makeup due to the limitations she had in raising her arms. (R. 51-52). She had
difficulty lifting a gallon of milk, and she could lift only three pounds. (R. 57-58). Driving
caused her hand to fall asleep. (R. 51). She estimated that she had the ability to walk half a
block. (R. 57). She was able to stand for approximately 15 to 20 minutes before she would need
to sit down. (R. 56). Philion estimated that she could sit for about 15 to 30 minutes before she
would need to stand up. (R. 56). She said that her constant need to shift positions kept her from
returning to work. (R. 55).
Following an injury at work, Philion presented to a Minor Emergency Center on February
13, 2003. (R. 323-24). She reported that she had pain in her right hip, right leg, and low back.
(R. 323). She was diagnosed with lumbosacral sprain; lumbosacral neuritis, not otherwise
specified; and accident from overexertion. (R. 323-24). She was treated with medications and
referred to an orthopedist. (R. 323).

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In March 2003, Philion saw Thomas G. Craven, M.D., with Central States Orthopedic
Specialists. (R. 256-60). Dr. Craven found evidence of disc herniation to the right at the L2-L3
level. (R. 256). Dr. Craven believed Philion’s upper back pain was probably due to a myofascial
strain or myofascial sprain. Id. He recommended an epidural steroid injection to her right side at
L2-L3, physical therapy, and medication. (R. 256, 259).
On April 15, 2003, Philion was examined by Steven J. Eichert, D.O., for complaints of
persistent upper and lower back pain. (R. 286-87). On May 28, 2003, Dr. Eichert performed an
extra-foraminal endoscopic right L2-L3 diskectomy with microdissection. (R. 283-85). Philion
continued to see Dr. Eichert in 2003 for persistent back pain, paresthesias in her right thigh, and
interscapular pain. (R. 276-82). On November 6, 2003, Dr. Eichert stated that the paresthesias
in Philion’s right thigh would “be unchanged over a long period of time.” (R. 276). He
recommended nonsteroidal anti-inflammatory drugs. Id.
Richard Hastings, D.O., Ph.D., followed Philion in 2003 and 2004 as part of her workers’
compensation claim. (R. 306-21). Philion complained of pain in her cervical spine, shoulders,
elbows, wrists, buttocks, and hips. (R. 314, 319). Dr. Hastings recommended an examination by
an orthopedic surgeon and additional imaging. (R. 311, 316, 321).
John B. Vosburgh, M.D., at Tulsa Bone & Joint, treated Philion in 2004. (R. 271-75).
Philion reported that she had persistent pain in her cervical spine, lumbar spine, and upper dorsal
spine. (R. 273-74). Based on imaging studies, Dr. Vosburgh assessed Philion with degenerative
changes in her spine. (R. 274). He advised Philion not to participate in any activity that involved
bending, stooping, twisting, running, climbing, and lifting over five pounds. (R. 274). He
recommended physical therapy, vocational training, and weight loss. (R. 271, 274).

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Philion was examined by Randall Hendricks, M.D. with Central States Orthopedics on
March 14, 2005, and her weight was 256 pounds. (R. 233-35). Philion had complaints of
numbness and tingling in her right leg, pain between her shoulder blades, and pain in her lower
back. (R. 233-34). On April 11, 2005 Dr. Hendricks noted spondylotic changes at L2-L3, L3L4, and L4-L5. (R. 226). Dr. Hendricks recommended that Philion exercise, diet, and lose
weight. Id. He released Philion to return to work without any restrictions. Id.
Steven E. Gaede, M.D., evaluated Philion on March 20, 2007 at the request of the
workers’ compensation court. (R. 410-14). Dr. Gaede’s impressions were persistent cervical
pain with interscapular pain that appeared to be discogenic. Id. He found kyphosis and
angulation at the C4-C5 cervical disc; bilateral radiculitis most consistent with the C5 nerve root;
possible shoulder pain; bilateral carpal tunnel syndrome; low back and right leg pain status postdiscectomy; and obesity. Id. He recommended further diagnostic testing. Id.
When Dr. Hastings examined her on July 11, 2007, Philion complained of persistent pain
in her neck, shoulders, and upper extremities. (R. 289-305). Her cervical pain was increased by
looking up, down, and sideways, and by rotation of her neck. (R. 291). Bending, stooping,
lifting, and twisting increased her back pain. Id. Dr. Hastings recommended that Philion
continue under the care of Dr. Gaede and undergo lumbar discogram testing. (R. 294).
At the referral of Dr. Gaede, Philion was examined by C. Scott Anthony, D.O., with
Tulsa Spine & Specialty Hospital on September 10, 2007. (R. 365-70). Dr. Anthony’s diagnosis
was right-sided L2 radiculopathy. (R. 365). He performed a right-sided L2 transforaminal
lumbar epidural steroid injection. Id. Philion received additional steroid injections in 2007,
2008, and 2009. (R. 333-60).

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On March 19, 2008, Dr. Gaede performed a right carpal tunnel release. (R. 393, 421-23).
Dr. Gaede’s operative report diagnoses were right carpal tunnel syndrome; cervical spondylosis;
lumbar radicular pain; obesity; and clinical left carpal tunnel without electrical confirmation. (R.
421). At Philion’s surgical follow-up appointment on April 23, 2008, he recommended that
Philion be referred to an orthopedic shoulder expert for evaluation and treatment. (R. 393-95).
On August 25, 2008, Brian Chalkin, D.O., at Orthopedic Center diagnosed Philion with a
left shoulder full thickness tear of the supraspinatus and early acromioclavicular joint arthritis.
(R. 439). On October 2, 2008, Dr. Chalkin performed a left shoulder arthroscopic rotator cuff
repair and subacromial decompression. (R. 438-39).
Dr. Gaede saw Philion on December 11, 2008, and made a report to the judge in the
workers’ compensation matter. (R. 380-81). He said that Philion was eligible for “light duties
with a lifting restriction of 20 pounds occasionally during the day and no repetitive bending,
stooping, twisting, crawling or climbing.” (R. 380).
On March 5, 2009, Philion told Dr. Gaede that she had pain in her right thigh and had
difficulty standing. (R. 375). Dr. Gaede advised Philion that she had the option to “either make
a settlement,” or consider a laminotomy and foraminotomy to possibly improve her pain. Id.
Philion underwent a left carpal tunnel release by Dr. Chalkin on May 12, 2009. (R. 44748). On July 24, 2009, Dr. Chalkin released Philion to work without any restriction. (R. 469).
R. Tyler Boone, M.D., evaluated Philion for ongoing complaints of back pain in
September and October 2009. (R. 475-76). On October 21, 2009, Dr. Boone advised Philion
that she needed to diet, lose weight, and exercise. (R. 512). He assessed that she had reached
maximum medical improvement, and he released her from his care. (R. 513). Dr. Boone stated

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that Philion needed permanent restrictions of maximum lifting of 40 pounds and repetitive lifting
of 20 pounds. Id. She was to avoid repetitive bending, stooping, and overhead activities. Id.
Dr. Hastings submitted an amended report dated December 17, 2009 in Philion’s
workers’ compensation case. (R. 571-90). Dr. Hastings concluded that Philion was “100%
permanently totally disabled.” (R. 590).
On January 5, 2010, Philion was examined by Bruce Smith, a rehabilitation consultant.
(R. 554-65). Smith determined that Philion would not be a candidate for retraining due to her
low test scores and academic skills. (R. 559). He found that she was not employable in jobs in
significant numbers due to her inability to perform a full range of sedentary functions. (R. 55960). He concluded that Philion was permanently and totally disabled due to her injury in
February 2003. (R. 560).
On January 14, 2010, Stephen J. Kabrick, P.T., C.A.E., performed a general functional
capacity evaluation. (R. 591-95). Philion reported high pain levels. Id. Kabrick stated that
Philion “did poorly” with the lifting and carrying portion of the test. (R. 592). Kabrick wrote
that Philion was “[n]ot consistent with her effort. She was able to lift 10 pounds, but was not
able to hold and carry a 2.5 pound milk case.” Id. Philion was unable to bend forward, crawl,
and kneel. (R. 591). Kabrick found that Philion had a less than sedentary physical demand level.
Id.
Agency examining consultant Corey R. Babb, D.O., conducted a physical consultative
examination of Philion on December 14, 2009. (R. 533-38). Dr. Babb recorded that Philion was
5' 2" tall and weighed 248 pounds. (R. 534). On examination, Philion had decreased range of
motion in her shoulders and spine due to her pain. Id. She had muscle spasms along her

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paraspinal gutters bilaterally. Id. She had neck pain with palpation. Id. Dr. Babb’s assessments
were chronic back pain, chronic neck pain, and muscle spasms. Id.
Nonexamining agency medical consultant, Walter W. Bell, M.D., completed a Physical
Residual Functional Capacity Assessment on January 12, 2010. (R. 596-603). Dr. Bell indicated
that Philion could occasionally lift or carry up to 20 pounds and frequently lift or carry up to 10
pounds. (R. 597). He found that Philion could stand and/or walk for a total of about 6 hours in
an 8-hour workday and could sit for a total of 6 hours in an 8-hour workday. Id. For narrative
explanation, Dr. Bell noted Philion’s 2003 work injury and her October 2008 last day of work.
(R. 597). He noted that Dr. Gaede had given permanent restrictions in December 2008 of lifting
20 pounds occasionally and no repetitive bending, stooping, twisting, crawling, or climbing. Id.
Dr. Bell then recounted Philion’s treating history, including her multiple surgeries. (R. 598). Dr.
Bell briefly summarized the consultative report of Dr. Babb and Philion’s activities of daily
living. Id. For postural limitations, Dr. Bell found that Philion could never climb ladders, could
only occasionally stoop, crouch, or crawl, and could frequently climb stairs, balance, and kneel.
Id. For manipulative limitations, Dr. Bell found that Philion had no restrictions on her right side,
but was limited to no overhead reaching on her left side. (R. 599). Dr. Bell found no visual,
communicative, or environmental limitations were established. (R. 599-600).
Procedural History
Philion filed an application on September 17, 2009, seeking disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (R. 145-46). Philion alleged
onset of disability as October 14, 2008. (R. 145). The application was denied initially and on
reconsideration. (R. 77-81, 86-88). A hearing before ALJ John W. Belcher was held March 1,
2011 in Tulsa, Oklahoma. (R. 27-69). By decision dated March 18, 2011, the ALJ found that
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Philion was not disabled. (R. 11-23). On August 15, 2012, the Appeals Council denied review
of the ALJ’s findings. (R. 1-6). Thus, the decision of the ALJ represents the Commissioner’s
final decision for purposes of this appeal. 20 C.F.R. § 404.981.
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 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, engage in
any other kind of substantial gainful work 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. 20 C.F.R. § 404.1520.3 See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)
(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Id.
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Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), 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 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
and RFC, can perform. See Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
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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: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. The court’s review is based on the record taken as a whole, and the
court will “meticulously examine the record in order to determine if the evidence supporting the
agency’s decision is substantial, taking ‘into account whatever in the record fairly detracts from
its weight.’” Id., quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The court
“may neither reweigh the evidence nor substitute” its discretion for that of the Commissioner.
Hamlin, 365 F.3d at 1214 (quotation omitted).
Decision of the Administrative Law Judge
The ALJ found that Philion met insured status requirements through December 31, 2013.
(R. 13). At Step One, the ALJ found that Philion had not engaged in any substantial gainful
activity since her asserted onset date of October 14, 2008. Id. At Step Two, the ALJ found that
Philion had severe impairments of “lumbar spine status post; degenerative disc disease, cervical
spine, left shoulder status post, bilateral carpal tunnel syndrome, left knee medial meniscus tear,
and left ankle.” Id. At Step Three, the ALJ found that Philion’s impairments did not meet a
Listing. (R. 14).
The ALJ determined that Philion had the RFC to perform less than sedentary work. (R.
14-15). The AJC specified that:
[Philion] must have a sit/stand option every hour. She has the ability to
occasionally climb stairs, balance, bend or stoop, kneel, crouch and crawl, never
reaching above her head with her left arm.
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Id. At Step Four, the ALJ found that Philion was not able to perform any past relevant work. (R.
21-22). At Step Five, the ALJ found that there were significant numbers of jobs in the national
economy that Philion could perform, taking into account her age, education, work experience,
and RFC. (R. 22). Therefore, the ALJ found that Philion was not disabled from October 14,
2008 through the date of his decision. (R. 23).
Review
Philion asserts two points in requesting that the Court reverse and remand this case. First,
she argues that the ALJ erred by failing to explicitly consider her obesity in determining whether
she was disabled. Second, she states that the ALJ erred in his failure to discuss the opinion
evidence of Kabrick, a physical therapist who completed a functional capacity evaluation.
Regarding the issues raised by Philion, the undersigned finds that the ALJ’s decision is supported
by substantial evidence and complies with legal requirements. Therefore, the ALJ’s decision is
affirmed.
The Issue of Obesity
Philion argues that the ALJ failed to list obesity as a separate severe impairment at Step
Two and failed to take it into consideration throughout his decision. Plaintiff’s Opening Brief,
Dkt. #20, pp. 6-8. As Philion notes, however, the ALJ at the outset of the hearing asked her
height and weight, and she testified that she was 5 feet tall and weighed 235 pounds. (R. 31).
Additionally, Philion notes that the ALJ included in his detailed discussion of the medical
evidence several references to Philion’s treating physicians stating that she needed to lose weight.
Plaintiff’s Opening Brief, Dkt. #20, p. 7. Philion states that the ALJ’s decision was “silent as to
whether or not the ALJ considered the effect of” her obesity. Id. at 8.

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The Court finds that the ALJ explicitly considered Philion’s obesity, even though he did
not list obesity as a separate severe impairment at Step Two. The references that Philion notes
reflect that the ALJ was aware that Philion was obese and that several of Philion’s physicians had
recommended that she should exercise, diet, and lose weight. Doyal v. Barnhart, 331 F.3d 758,
761 (10th Cir. 2003) (“the form of words should not obscure the substance of what the ALJ
actually did”). Further, the ALJ noted that his RFC determination was supported by the findings
of the nonexamining consultants. (R. 21). Agency nonexamining consultant Dr. Bell explicitly
noted that Philion had a body mass index of 45 based on the measurements Dr. Babb included in
his consultative examination report. (R. 598). Dr. Bell said that “[e]xam findings” were
considered in his RFC conclusions. Id. The opinion of Dr. Bell, which explicitly noted Philion’s
obesity, was substantial evidence that the ALJ was entitled to rely upon. See Flaherty v. Astrue,
515 F.3d 1067, 1071 (10th Cir. 2007).
Moreover, other than stating her height and weight, Philion gave no testimony regarding
the effect of her weight on her ability to perform physical activities. (R. 27-69). Her attorney
asked her no questions relating to her obesity. (R. 44-63). See Briggs v. Astrue, 221 Fed. Appx.
767, 770-71, 837-38 (10th Cir. 2007) (unpublished) (declining to find error in ALJ’s discussion
of claimant’s obesity when claimant “did not address his obesity either in his application for
benefits or at the hearing before the ALJ”). See also Alvey v. Colvin, 2013 WL 4529410 *3 (10th
Cir.) (unpublished) (harmless error when ALJ failed to explain why his RFC included no mental
limitations from nonsevere mental impairments given that evidence did “not support assessing
any functional limitations from mental impairments”); Keyes-Zachary v. Astrue, 695 F.3d 1156,
1173 (10th Cir. 2012) (ALJ’s failure to mention alleged side effect was harmless error given
circumstances of case).
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Under the circumstances of this case, the ALJ’s discussion of Philion’s obesity was
adequate.
Kabrick’s Functional Capacity Evaluation
The Social Security Administration explained how ALJs should consider opinions from
medical sources who are not “acceptable medical sources,” such as Kabrick, a physical therapist,
in Social Security Ruling 06-03p, 2006 WL 2329939. Generally, the ALJ should discuss and
consider opinions from other sources and explain the weight given to these opinions in his
decision in enough detail to allow for subsequent review. Id. at 6.
The Court finds that the ALJ’s decision was adequate, even though he did not explicitly
discuss Kabrick’s report. Keyes-Zachary, 695 F.3d at 1166 (“The more comprehensive the
ALJ’s explanation, the easier our task; but we cannot insist on technical perfection.”). In KeyesZachary, the Tenth Circuit rejected an argument that the ALJ had not sufficiently discussed
treating physician opinion evidence:
In sum, we reject [claimant’s] contention that the ALJ’s opinion does not
adequately evaluate and discuss the medical-source evidence. Where, as here, we
can follow the adjudicator’s reasoning in conducting our review, and can
determine that correct legal standards have been applied, merely technical
omissions in the ALJ’s reasoning do not dictate reversal.
Id. See also Zumwalt v. Astrue, 220 Fed. Appx. 770, 780 (10th Cir. 2007) (unpublished) (LPC
was not an acceptable medical source, and ALJ’s treatment of her evidence was sufficient).
Here, the ALJ discussed all of the medical evidence, absent Kabrick’s report, in some
detail. (R. 15-21). He then explained that he gave little weight to the opinion of Dr. Hastings
that Philion was permanently totally disabled and to the opinion of Smith, the rehabilitation
consultant, basing this weight on the difference between workers’ compensation law and Social

13

Security disability law. (R. 20). Philion has not appealed from this portion of the ALJ’s
decision.
In the administrative transcript, the report of Kabrick was placed immediately after the
December 17, 2009 Amended Report of Dr. Hastings, and the two, combined, were considered as
Exhibit 15F. (R. 569-95). When stating that he gave little weight to the opinions of Dr. Hastings
and Smith, the ALJ cited to Exhibit 13F, 14F, and 15F. (R. 20). The Court finds, therefore, that
the ALJ intended to include the report of Kabrick in his analysis of the opinion evidence that was
directly related to Philion’s workers’ compensation claim. In the introduction to his report,
Kabrick said that his evaluation followed guidelines of the Oklahoma Workers’ Compensation
Court. (R. 591). Giving Kabrick’s report little weight because it was intended for use in the
workers’ compensation proceedings was a legitimate reason. See, e.g., Seever v. Barnhart, 188
Fed. Appx. 747, 753 (10th Cir. 2006) (unpublished); Jones v. Barnhart, 53 Fed. Appx. 45, 47
(10th Cir. 2002) (unpublished).
Second, Kabrick’s report was generally consistent with the RFC assessed by the ALJ.
Kabrick concluded that Philion’s “physical demand level would be Less than Sedentary.” (R.
591). The ALJ also concluded that Philion could perform only a limited range of work at the
sedentary exertional level. (R. 14-15). Portions of Kabrick’s report reflect that Philion was
limited in her ability to stand and to sit. (R. 591-95). The ALJ accommodated this limitation, as
least in part, by including a sit/stand option in his RFC determination. (R. 14-15). Another of
Kabrick’s findings was that Philion could not climb stairs, bend forward, crawl, kneel, or squat.
The ALJ addressed this concern in his RFC determination, although to a lesser degree, by
limiting Philion to doing most postural activities only occasionally. (R. 14-15).

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When evidence does not conflict with the ALJ’s RFC determination, the ALJ has a
reduced burden for “express analysis.” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).
In Howard, the Tenth Circuit rejected the claimant’s argument that the ALJ had not complied
with his obligation to discuss the evidence. The court first found that the ALJ’s discussion was
adequate, but then, as a second point, found that “perhaps more importantly, in this case none of
the record medical evidence conflicts with the ALJ’s conclusion that claimant can perform light
work. When the ALJ does not need to reject or weigh evidence unfavorably in order to
determine a claimant’s RFC, the need for express analysis is weakened.” Id. Here, because the
ALJ’s RFC determination was consistent with most of the findings in Kabrick’s report, the need
for the ALJ to discuss the report was reduced.
Finally, the ALJ relied on substantial evidence in determining Philion’s RFC. He said he
gave “great weight” to the opinions of Dr. Anthony and Dr. Boone, whom he found to be treating
physicians. (R. 20). The ALJ also noted that his RFC determination was supported by the
findings of the nonexamining consultants. (R. 21). The opinions of those consultants were
substantial evidence that the ALJ was entitled to rely upon. See Flaherty, 515 F.3d at 1071
(nonexamining consultant’s opinion was an acceptable medical source which the ALJ was
entitled to consider and which supported his RFC determination).
The ALJ’s treatment of the report of Kabrick was adequate, and his RFC determination
was supported by substantial evidence.

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Conclusion
The decision of the Commissioner is supported by substantial evidence and the correct
legal standards were applied. The decision is AFFIRMED.
Dated this 15th day of November 2013.

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