Carver v. Social Security Administration

Filing 33

OPINION AND ORDER by Judge Claire V Eagan affirming Commissioner's decision ; accepting 31 Report and Recommendation (Re: 2 Social Security Complaint, 32 Objection to Report and Recommendation, 31 REPORT AND RECOMMENDATION by Magistrate Judge T Lane Wilson ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

JIMMY DALE CARVER,

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

Case No. 12-CV-0614-CVE-TLW

OPINION AND ORDER
On February 14, 2014, Magistrate Judge T. Lane Wilson entered a report and
recommendation (Dkt. # 31) recommending that the Court affirm the decision of the Commissioner
of the Social Security Administration to deny plaintiff’s claim for disability benefits. Plaintiff has
filed an objection to the report and recommendation, and requests either an award of benefits or a
remand of the case for further administrative proceedings. Dkt. # 32. Plaintiff argues that the
administrative law judge (ALJ) incorrectly determined his residual functional capacity (RFC), failed
to properly formulate his hypothetical questions to the vocational expert (VE), failed to properly
consider medical evidence and a third-party function report, and weighed plaintiff’s credibility
incorrectly. Id.
I.
On November 13, 2009, plaintiff applied for disability benefits, Dkt. # 10-5, at 2-4, alleging
that he has been unable to work since March 1, 2003, because of his disabling condition. Id. at 5.
Plaintiff alleges that an injury to his T-10 vertebra and his depression limit his ability to work. Dkt.

# 10-6, at 22.

Plaintiff’s claim was initially denied on February 26, 2010, and again on

reconsideration on May 3, 2010. Dkt. # 10-3; Dkt. # 10-4, at 2-5, 7-8.
Plaintiff requested a hearing before an ALJ, and a hearing was held on March 24, 2011. Dkt.
# 10-4, at 10-11; Dkt. # 10-2, at 43. Plaintiff appeared at the hearing and was represented by an
attorney. Dkt. # 10-2, at 43. Plaintiff was twenty-six years old on the date of the hearing. Compare
id. at 45, with id. at 49-50. He lives with his fiancée, and their household income consists of the
fiancée’s government benefits. Id. at 52, 56. Plaintiff has a GED and some vocational training, but
he does not have a college degree. Id. at 50. At the time of the hearing, plaintiff was not taking any
medications. Id. at 61. He stated that he could not afford any treatment and was not receiving any,
beyond group therapy stemming from a felony conviction. Id. at 60-61. Plaintiff stated that he
worked as a lineman in a factory and as part of a sanitation team at a mushroom farm. Id. at 56-57.
Plaintiff also briefly worked for Penmac Personnel Services, but quit working due to discomfort in
his back. Id. at 55. That job, at which plaintiff worked one day a week for no more than a month,
entailed pushing wheelbarrows weighing from two to five hundred pounds. Id. at 55, 62.
Plaintiff sleeps approximately ten hours per night. Id. at 57-58. He has a driver’s license
and drives approximately once a day. Id. at 50-51. Plaintiff claimed he has problems with his vision
and that his driver’s license has a left outside rearview mirror restriction. Id. at 51. Plaintiff helps
with household chores such as cooking and cleaning. Id. at 58. Plaintiff is able to bathe and dress
himself, with reminders. Id. Plaintiff reads magazines and books, watches television, and plays
video games. Id. at 59. Plaintiff states that he can pick up objects weighing up to fifteen pounds,
walk for thirty minutes at a time, and sit for thirty to forty-five minutes at a time. Id. at 60. He
claims to have trouble maintaining his balance, due to his knee. Id. at 52.

2

The ALJ called a VE, Michael J. Wiseman, to testify. Wiseman testified that all of plaintiff’s
former employment had a specific vocational preparation (SVP) level of 2. Id. at 63. The ALJ
posed a hypothetical question1 to the VE. Id. at 64-65. The VE testified that the hypothetical
claimant could perform light work as an electronics assembler or housekeeper and sedentary work
as a semiconductor assembler or clerical mailer. Id. at 65-66.2 The ALJ then added an additional
limitation of a sit/stand option and an additional limitation of close supervision. Id. at 67-68. The
VE testified that either limitation would preclude plaintiff from working. Id.
On April 14, 2011, the ALJ entered a written decision denying plaintiff’s claim for disability
benefits. Dkt. # 10-2, at 19-42. The ALJ found that plaintiff had not engaged in substantial gainful

1

The question was:
[A]ssume 25 years of age on the protective filing date here; assume now 26
years of age; assume an individual with a high school education in the form
of a GED, assume for a moment the past work you’ve described without
making any findings of SGA because I’m not sure that level rises to SGA
level work. Assume nevertheless we’re looking at light work or sedentary
work only in the first hypothetical. Assume any -- some additional factors
here. Assume no climbing of ropes, ladders, scaffolds, unprotected heights,
or dangerous machinery parts; assume also an individual limited to
understanding, remembering, and carrying out simple instructions in a workrelated setting; assume any interaction with coworkers and supervisors under
a routine supervision; assume interaction with the public only occasionally;
and you can assume symptoms from a variety of sources. It could be pain,
could be fatigue, could be depression, any of those, all of them variously
described and of sufficient severity. So it’s to be noticeable to that person at
all times and able to remain attentive, responsive, and perform work
assignments within the above limits I’ve just given you.
Dkt. # 10-2, at 65.

2

The VE also testified that plaintiff would be limited to the sedentary jobs if the following
were also assumed: “walking or standing two hours of an eight-hour day; sitting six hours
of an eight-hour day; postural limits be it bending and stooping, kneeling, crouching,
crawling occasionally; only overhead reaching only [sic] occasionally; [and] use of foot
pedals only occasionally.”
3

activity since his application date. Id. at 25.3 The ALJ found that plaintiff had the severe
impairments of “back pain in the thoracic and lumbar spine; obesity; mood disorder, not otherwise
specified; history of substance abuse, in remission; personality disorder, not otherwise specified
(antisocial features), and reduced visual acuity in the left eye (which may be more than de minimus
[sic]).” Id. at 25-26. With regard to plaintiff’s vision, the ALJ determined that that impairment
caused “no more than minimal limitation in the ability to perform basic work activities.” Id. at 26.4
The ALJ found that none of those impairments, nor any combination of those impairments,
met or medically equaled the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.5
In determining whether plaintiff met or medically equaled the listed impairments, the ALJ concluded
that plaintiff has mild restrictions in activities of daily living, moderate difficulties in social function,
and moderate difficulties with regard to concentration, persistence, or pace. Id. at 27-28. There was
no evidence of decompensation in the record. Id. at 28. To reach these conclusions, the ALJ relied
on the findings of the consultive medical examiner, the statements of plaintiff’s fiancée, and
plaintiff’s own statements. Id. at 27-28.

3

Plaintiff had briefly worked after the application date, but that work was not substantial
gainful activity. Dkt. # 10-2, at 25.

4

Plaintiff had been diagnosed as blind in his left eye. Dkt. # 10-2, at 26. However, this
diagnosis was based on plaintiff’s uncorrected visual acuity of right eye 20/20 and left eye
20/200. Id. Plaintiff was not wearing glasses at the time of that examination. Id. However,
plaintiff uses glasses prescribed by a doctor and has not received any other treatment for
vision problems. Id.

5

The ALJ specifically considered Listing 1.04, Listing 12.04, Listing 12.06, Listing 12.08,
and Listing 12.09. Dkt. # 10-2, at 26-27.
4

The ALJ then reviewed plaintiff’s testimony and the medical evidence. Id. at 31-36.6
Plaintiff had undergone a consultive exam on January 14, 2010. Id. at 31. Plaintiff’s chief
complaint was that he had been experiencing dorsal pain since 1999. Id. at 31-32. This pain was
the result of a compression fracture sustained playing football. Id. at 32. The examining physician
determined that plaintiff could walk normally, but was tender in the dorsal and lumbar midline. Id.
Plaintiff “had good full range of motion of the spine, but with pain on range of motion testing of the
lumbosacral spine.” Id. The physician determined that plaintiff “had no sensory loss, and deep
tendon reflexes were 2/4 bilaterally.” Id. The physician further determined that plaintiff could
“read, write, sit up, transfer, reach, bend, manipulate objects with his hands, do activities of daily
living, carry and lift, squat and kneel.” Id. The examining physician diagnosed plaintiff with lower
dorsal pain, a history of depression, and blindness in the left eye. Id.
Plaintiff’s primary care treatment was at Northeastern Tribal Health. Id. On March 29,
2010, plaintiff complained of back pain. Id. A physical examination revealed point tenderness over
the spinous process of T-10. Id. X-rays taken at that time “revealed mild facet arthorosis bilaterally
at the L5 level, Schmorl nodes at L4-L5 and L5-S1, and a severe age indeterminate compression
deformity at the T10 level.” Id. Tramadol and ibuprofen were prescribed for plaintiff’s pain. Id.
Plaintiff later stated to a physician’s assistant that the Tramadol and ibuprofen did not help much
with his back pain. Id. The physician’s assistant stated “that he had nothing to offer [plaintiff] for
his lower back pain,” and discontinued the medication Id. The physician’s assistant then suggested
a follow-up in one year, or as required. Id.

6

The ALJ took note of plaintiff’s obesity during this stage. Dkt. # 10-2, at 32-33.
5

On January 12, 2010, plaintiff underwent a psychological consultive examination. Id. at 33.
Plaintiff’s primary complaints were depression, anxiety, and vague hallucinatory experiences. Id.
The psychologist found that plaintiff was cooperative but “had a withdrawn manner and an overly
blunted affect.” Id. The psychologist stated that plaintiff’s General Intellectual Ability Estimate
was “borderline range vs. low average range with learning disabilities.” Id. The psychologist
believed plaintiff was cooperative, but somewhat vague, and that plaintiff may have been
minimizing behavior and substance-related difficulties. Id. at 34.
The psychologist diagnosed plaintiff with
psychiatric disorder, not otherwise specified, provisional, Rule Out; mood disorder,
not otherwise specified; learning disorder, not otherwise specified, provisional, Rule
Out; history of methamphetamine, opioid, and cannabis dependence, full sustained
remission (remission status per [plaintiff’s] report); personality disorder, not
otherwise specified (antisocial features); and borderline intellectual functioning,
provisional, Rule Out.
Id. The psychologist assigned plaintiff a Global Assessment of Functioning (GAF) Scale score of
45. Id. The ALJ accepted the psychologist’s definitive diagnoses, but rejected the psychologist’s
provisional diagnoses. Id. The psychologist also included opinion evidence as to plaintiff’s
estimated capabilities and diagnoses. Id. at 35-36.7 The ALJ accorded great weight to that opinion
evidence. Id. at 36. The ALJ also accorded great weight to the opinions of the medical consultants
and consultive examiners of the State Disability Determination Services, in terms of plaintiff’s
mental limitations. Id. at 37.

7

Those estimated capabilities included plaintiff being able to understand and remember
simple instructions, concentrate and persist on moderately complex tasks, interact with the
public in a limited manner, interact with his supervisors and co-workers in a limited manner,
and adapt to a simple work environment. Dkt. # 10-2, at 35.
6

The ALJ also considered plaintiff’s credibility. Id. at 34-35. Because of discrepancies
between plaintiff’s alleged symptoms and the objective documentation on file, the ALJ determined
that plaintiff’s “statements about his impairments and their impact on his ability to perform activities
of daily living and basic functions are not entirely credible.” Id. at 34. The ALJ found the fact that
plaintiff’s allegedly limited daily activities could not be objectively verified with a reasonable
degree of certainty weighed against a finding that plaintiff was credible, as did the fact that, even
if plaintiff’s activities of daily living were limited, relatively weak medical and other evidence made
it difficult to attribute plaintiff’s limitations to plaintiff’s medical condition (as opposed to other
reasons). Id. at 34-35. The ALJ noted that plaintiff had not received the degree of medical care
expected for a completely disabled individual and that plaintiff’s medical care had been routine and
conservative in nature. Id. While acknowledging that plaintiff claims to be unable to afford care,
the ALJ found that “[t]here are public facilities available to those who do not have insurance or who
are unable to pay for medical care,” and observed that plaintiff has provided no evidence that he has
sought or been denied medical treatment from indigent care facilities or his treating sources. Id.
The ALJ found this failure to seek medical treatment inconsistent with the existence of a constant
and disabling condition. Id. Additionally, the ALJ determined that while plaintiff’s medical record
did suggest pain, the medical records did not suggest that the pain was so severe as to limit plaintiff
to the degree he alleges.

Id.

The ALJ also accorded great weight to the psychologist’s

determination that plaintiff was only partially reliable. Id. at 36. The ALJ concluded that plaintiff
was partially credible. Id. at 35. The ALJ did find credible plaintiff’s statement that he had not used
illegal substances since being released from prison. Id. at 36.

7

The ALJ mentions two function reports. Id. at 28. The ALJ cites to plaintiff’s function
report when determining plaintiff’s mental limitations. In particular, the ALJ recognizes that the
report states that plaintiff is limited due to pain, not because of a mental condition. Id. The ALJ also
reviewed a third-party function report submitted by plaintiff’s fiancée. Id.
Based on the objective medical evidence and other evidence, the ALJ determined plaintiff’s
RFC. Id. at 29-30.
He is limited to light and sedentary exertion work. He is unable to climb ropes,
ladders, and scaffolds, and is unable to work in environments where he would be
exposed to unprotected heights and dangerous moving machinery parts. He is able
to understand remember, and carry out simple instructions in a work-related setting,
and is able to interact with co-workers and supervisors, under routine supervision.
He is unable to interact with the public more than occasionally. He is afflicted with
symptoms from a variety of sources to include moderate intermittent pain and
fatigue, depression, and allied disorders, all variously described, that are of sufficient
severity so as to be noticeable to him at all times, but nevertheless is able to remain
attentive and responsive in a work-setting and would be able to perform work
assignments within the above-cited limitations.
Id. (italics removed). The ALJ determined that plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.” Id. at 31.
The ALJ determined that plaintiff did not have any past relevant work. Id. at 37. However,
the ALJ determined that a significant number of jobs exist that plaintiff could perform. Id. at 38.
The ALJ stated, based on the testimony of the VE, that plaintiff could perform the requirements of
electronics assembler, housekeeper, semiconductor assembler, and clerical mailer. Id. at 38-39.
The ALJ concluded that plaintiff was not disabled. Id. at 39.

8

On August 14, 2011, the Appeals Council denied plaintiff’s request for review. Id. at 2-4.
When the Appeals Council denied review, the ALJ’s decision became the Commissioner’s final
decision. Wiederholt v. Barnhart, 121 Fed. App’x 833, 836 (10th Cir. 2005).8 Plaintiff filed this
case seeking judicial review of the Commissioner’s decision (Dkt. # 2), and the matter was referred
to a magistrate judge for a report and recommendation. After the matter was fully briefed, the
magistrate judge entered a report and recommendation recommending that the Commissioner’s
decision to deny plaintiff’s claim for disability benefits be affirmed. Dkt. # 31. Plaintiff has filed
an objection (Dkt. # 32) to the report and recommendation, but defendant has not filed a response
to plaintiff’s objection and the time for defendant to respond has expired.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within fourteen days of service of the recommendation.
Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d
573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the
magistrate judge in whole or in part. Fed. R. Civ. P. 72(b).

8

This and all other unpublished opinions are not precedential but are cited for their persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
9

III.
The Social Security Administration has established a five-step process to review claims for
disability benefits. See 20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five step process:
Step one requires the agency to determine whether a claimant is “presently engaged in
substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)]. If
not, the agency proceeds to consider, at step two, whether a claimant has “a medically severe
impairment or impairments.” Id. An impairment is severe under the applicable regulations
if it significantly limits a claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. § 404.1521. At step three, the ALJ considers whether a claimant’s
medically severe impairments are equivalent to a condition “listed in the appendix of the
relevant disability regulation.” Allen, 357 F.3d at 1142. If a claimant’s impairments are not
equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant’s
impairments prevent her from performing her past relevant work. See Id. Even if a claimant
is so impaired, the agency considers, at step five, whether she possesses the sufficient
residual functional capability to perform other work in the national economy. See Id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The ALJ decided this case at step five of the
analysis and found that sufficient jobs existed in the national economy that plaintiff could perform,
given his RFC, age, work experience, and education. Dkt. # 10-2, at 38.
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ.
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). Instead, the Court reviews the record
to determine if the ALJ applied the correct legal standard and if his decision is supported by
substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record
or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004). The Court must meticulously examine the record as a whole and consider any
evidence that detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994).
10

Plaintiff raises three objections to the magistrate judge’s report. Dkt. # 32. Plaintiff argues
that the ALJ’s RFC determination and hypothetical questions to the VE were flawed, that the ALJ
failed to properly consider evidence, and that the ALJ’s incorrectly assessed plaintiff’s credibility.
Id.
A. Hypothetical Questions to Vocational Expert and RFC Determination
Plaintiff argues that the ALJ failed to include all the findings of the nonexamining,
nontreating expert reviewers of the State agency in his hypothetical to the VE. Id. at 1. The
reviewers marked in Section I of their report that plaintiff was moderately limited in his “ability to
accept instructions and respond appropriately to criticism from supervisors.” Dkt. # 10-7, at 18.
Section I of the reviewers’ report is entitled “Summary Conclusions” and “is for recording summary
conclusions.” Id. at 17. The section’s instructions state that a “[d]etailed explanation of the degree
of limitation . . . is to be recorded in Section III (Functional Capacity Assessment).” Id. Section III
of the reviewers’ report explains and elaborates on the reviewers’ summary conclusions in narrative
form. Id. at 19. This section states: “Claimant can perform simple tasks with routine supervision.
Claimant can relate to supervisors and peers on a superficial work basis. Claimant can relate
superficially to the general public on a limited basis. Claimant can adapt to a simple work
situation.” Id.
Neither the ALJ’s hypothetical questions, nor his decisional RFC, explicitly included a
moderate limitation in plaintiff’s ability to accept instructions and respond appropriately to criticism
from supervisors. Dkt. # 10-2, at 29-30, 64-68. Plaintiff argues that failure to include this limitation
is contrary to the dictates of Haga v. Astrue, 482 F.3d 1205 (10th Cir. 2007). However, Haga
applies only where an ALJ has rejected some of an expert’s restriction findings. Id. at 1208. Here,

11

the ALJ did not reject any of the reviewer’s findings. The ALJ’s hypothetical questions included
the assumption of “an individual limited to understanding, remembering, and carrying out simple
instructions in a work-related setting” and the assumption of “any interaction with coworkers and
supervisors under a routine supervision.” Dkt. # 10-2, at 64.9 These assumptions are consistent with
the expert reviewer’s functional capacity assessment, which incorporates the summary conclusion
that plaintiff has a moderate limitation in his ability to accept instructions and respond appropriately
to criticism. Dkt. # 10-7, at 17-19. An ALJ does not have to use the exact language of the summary
conclusion in order to accept it. See Haga, 482 F.3d at 1208 (stating that an RFC determination that
a claimant was “limited to ‘simple repetitive tasks’ with ‘only incidental contact with the public’ and
‘no requirement for making change’” constitutes an adoption of a reviewer’s conclusion that
claimant possessed moderate limitations in her ability to “‘[u]nderstand and remember detailed
instructions,’ ‘[c]arry out detailed instructions,’ or ‘[i]nteract appropriately with the public’”)
(alterations in original). Because the ALJ did not reject the expert’s findings, properly questioned
the VE in regard to them, and included them within his RFC, Haga is inapplicable and the report and
recommendation should not be rejected on this ground.
Plaintiff also argues that plaintiff’s limitations of social functioning and of concentration,
persistence, and pace must be included in the ALJ’s hypothetical questions to the VE. Dkt. # 32,
at 4. The ALJ found that, with regard to concentration, persistence, or pace, claimant has moderate
difficulties. Dkt. # 10-2, at 28. The ALJ also found that plaintiff has moderate difficulties in social

9

Plaintiff’s RFC states that he “is able to understand remember, and carry out simple
instructions in a work-related setting, and is able to interact with co-workers and supervisors,
under routine supervision.” Dkt. # 10-2, at 30.
12

functioning. Id. These limitations are “paragraph B” limitations, used during step 2 and 3 of the
evaluation process. Id. at 27-28.
[T]he limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not
an RFC assessment but are used to rate the severity of mental impairment(s) at steps
2 and 3 of the sequential evaluation process. The mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more detailed
assessment by itemizing various functions contained in the broad categories found
in paragraphs B and C . . . .
SSR 96-8p, 1996 WL 374184, at *4. An ALJ is not required to include paragraph B limitations in
his questions to the VE. See Jimison ex rel. Sims v. Colvin, 513 Fed. App’x 789, 793 (10th Cir.
2013) (holding that a hypothetical to a VE needs to contain only the claimant’s functional limitations
and restrictions and is not required to include paragraph B limitations); see also Swanson v.
Barnhart, 190 Fed. App’x 655, 658 n.1 (10th Cir. 2006) (concluding that by including in a
hypothetical question to the VE that the claimant had “‘marked restrictions in the ability to
understand, remember and carry out detailed instructions’ and the ability ‘to perform simple, but not
complex tasks under routine supervision’” -- assumptions similar to those found in the hypothetical
questions in this case -- the ALJ adequately accounted for the claimant’s moderate difficulties in

13

concentration, persistence, or pace). None of the published Tenth Circuit cases cited by plaintiff
contradicts this rule.10
An unpublished case does stand for the proposition that a hypothetical question must
incorporate an ALJ’s paragraph B limitations. Wiederholt v. Barnhart, 121 Fed. App’x 833, 839
(10th Cir. 2005). There, the court determined that a hypothetical question with the limitations of
“simple” and “unskilled” work was too broad and unspecific to adequately incorporate the
claimant’s paragraph B limitations. Id.; see also Wayland v. Chater, No. 95-7029, No. 95-7059,
1996 WL 50459, at *1-2 (10th Cir. Feb. 7, 1996) (holding that a hypothetical question assuming
“unskilled” work is insufficient to account for deficiencies of concentration, persistence, or pace that
occur “often”). Wiederholt is distinguishable. The mental limitations in the ALJ’s hypothetical

10

A number of these cases state only general rules and do not address non-severe paragraph
B limitations. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000); Decker v. Chater,
86 F.3d 953, 955 (10th Cir. 1996); Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995);
Hargis v. Sullivan, 945 F.2d 1482, 1491-92 (10th Cir. 1991). The quote in Chapo v. Astrue,
682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (“[T]he failure of the ALJ to include his own
mental restriction would be fatal to the validity of the hypothetical to the VE.”), cited to by
plaintiff, refers not to paragraph B limitations, but to the restriction to “simple, unskilled
work.” Id. Wells v. Colvin, 727 F.3d 1061, 1065 & n.3 (10th Cir. 2013), stands only for the
proposition that paragraph B limitations must be further analyzed by the ALJ when crafting
an RFC, not that those limitations must be part of the RFC or included in a hypothetical
question to a VE. In crafting plaintiff’s RFC, the ALJ throughly considered plaintiff’s
mental status and function, and how plaintiff’s limitations would affect his capabilities. Dkt.
# 10-2, at 33-37; see Wells, 727 F.3d at 1065 (stating that an ALJ’s discussion of a
claimant’s mental function in the credibility portion of his RFC analysis may have been
sufficient to fulfill his step four duty, despite being far from systematic, had it been
supported by substantial evidence); see also Dkt. # 10-2, at 29 (“Therefore, the following
residual functional capacity assessment reflects the degree of limitation the undersigned has
found in the ‘paragraph B’ mental function analysis.”). Frantz v. Astrue, 509 F.3d 1299,
1303 n.3 (10th Cir. 2007), suggests, in dicta, that the ALJ should include paragraph B
limitations in his RFC determination. The opinion does not discuss what questions must be
asked of a VE. See generally id. Additionally, a recent, albeit unpublished, decision
suggests that Frantz does not even require “an ALJ’s RFC assessment to mirror his step
three-findings.” Beasley v. Colvin, 520 Fed. App’x 748, 754 n.3 (10th Cir. 2013).
14

questions in this case included assuming “an individual limited to understanding, remembering, and
carrying out simple instructions in a work-related setting; [assuming] any interaction with coworkers
and supervisors under a routine supervision; [and assuming] interaction with the public only
occasionally.” Dkt. # 10-2, at 65. That hypothetical question is far more detailed than one which
merely restricts a claimant to “simple” and “unskilled” work. Additionally, it tracks the language
of plaintiff’s functional capacity assessment, as assessment which incorporates plaintiff’s paragraph
B limitations. Compare id., with Dkt. # 10-7, at 17-19. The ALJ’s hypothetical questions properly
accounted for plaintiff’s mental limitations and the report and recommendation should not be
rejected on this ground.
B. Medical and “Other Source” Evidence
Plaintiff argues that the ALJ erred in failing to properly credit a GAF score and for failing
to explain why he assigned it little weight. Dkt. # 32, at 7. An ALJ is not required to discuss a GAF
score in making his RFC determination. Zachary v. Barnhart, 94 Fed. App’x 817, 819 (10th Cir.
2004). A GAF score of 45 “may indicate problems not necessarily related to [plaintiff’s] ability to
hold a job . . . and therefore standing alone, without any further narrative explanation, this rating
does not support an impairment seriously interfering with [plaintiff’s] ability to work.” Id. Here,
the ALJ stated that he carefully considered the entire record, which includes plaintiff’s consultation
with the psychologist who assessed plaintiff’s GAF score. Dkt. # 10-2, at 29, 33-34. Additionally,
the ALJ’s RFC determination is not inconsistent with the psychologist’s report. Compare id. at 30,

15

with Dkt. # 10-7, at 3-8. Because the psychologist was not one of plaintiff’s treating sources,11 the
ALJ’s consideration of her opinion was sufficient. See Zachary, 94 Fed. App’x at 819.
Plaintiff also argues that the ALJ failed to appropriately evaluate a third-party function report
prepared by plaintiff’s fiancée. Dkt. # 32, at 9. An ALJ must consider the opinions of non-medical
sources who have not seen the plaintiff in his professional capacity. SSR 06-03p, 2006 WL
2329939, at *6. The ALJ clearly considered the third-party report, because he cited to it when
determining plaintiff’s paragraph B limitations. See Dkt. # 10-2, at 28.
Although there is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or decision, 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, when such opinions may have an effect on the outcome of the case.
SSR 06-03p, 2006 WL 2329939, at *6; see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
1996) (stating that there is no requirement that an ALJ discuss every piece of evidence; an ALJ
needs only to discuss “the evidence supporting his decision,” “uncontroverted evidence he chooses
not to rely upon,” and “significantly probative evidence he rejects”). Therefore, the ALJ is required
only to ensure that his reasoning regarding the third-party report could be followed, and even that
is required only if the third-party report could have affected the outcome of the case. Here, the ALJ
was not required to discuss the third-party report, because it could not have any effect on the
outcome of the case.12 The report was substantially similar to plaintiff’s report and plaintiff’s

11

The GAF score of a treating physician must be analyzed. Givens v. Astrue, 251 Fed. App’x
561, 567 (10th Cir. 2007).

12

Alternatively, it is reasonably clear what reasoning was used by the ALJ in evaluating the
third-party report. See Dkt. # 10-2, at 28.
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testimony. Compare Dkt. # 10-7, at 29-36, with id. at 2-9, and Dkt. # 10-2, at 48-62. While such
a report may have marginally improved plaintiff’s credibility, it would not have had an effect on the
outcome of the case and is not particularly probative. See Dkt. # 10-2, at 35-37 (discussing how
plaintiff’s report and testimony are not fully credible as they conflict with both medical evidence
and opinion evidence that the ALJ accords great weight). No further discussion regarding the thirdparty report was required of the ALJ.
C. Credibility Determination
Plaintiff argues that the ALJ failed to perform a proper credibility determination and that the
ALJ should have found plaintiff to be fully credible. Dkt. # 32, at 13. “Credibility determinations
are peculiarly the province of the finder of fact,” and such determinations are not to be upset “when
supported by substantial evidence.” Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777
(10th Cir. 1990). Nonetheless, “[f]indings as to credibility should be closely and affirmatively
linked to substantial evidence.” Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988). Factors
the ALJ may weigh in determining a claimant’s credibility include:
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly within
the judgment of the ALJ, the motivation of and relationship between the claimant
and other witnesses, and the consistency or compatibility of nonmedical testimony
with objective medical evidence.
Huston, 838 F.2d at 1132. An ALJ must look beyond objective medical evidence when evaluating
claims of disabling pain. Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). However, an ALJ
does not need to provide a “formalistic factor-by-factor review of the evidence;” an ALJ needs only
to “set[] forth the specific evidence he relies on in evaluating the claimant’s credibility.” Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Common sense should guide the review of an ALJ’s
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credibility determination and technical perfection is not required. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1166-67 (10th Cir. 2012).
The ALJ stated his reasoning for determining that plaintiff was only partially credible. Dkt.
# 10-2, at 34-37. He determined that plaintiff’s description of his daily activities was not
particularly credible because it was not objectively verifiable and is difficult to attribute to plaintiff’s
medical condition, in light of the medical evidence and other evidence. Id. at 34-35. He determined
that plaintiff had not received the type of care that a totally disabled person would generally receive.
Id. at 35. He noted that plaintiff’s care was “essentially routine and conservative in nature.” Id. He
observed that plaintiff did not receive treatment for his back until after applying for benefits. Id.
He also noted that plaintiff’s pain medications were discontinued at a later appointment and that
there is no evidence that plaintiff sought additional medical treatment. Id. The ALJ noted that, in
fact, plaintiff testified that he takes no medication for his pain. Id. The ALJ did consider that
plaintiff has testified that he is unable to afford treatment, but noted that “[t]here are public facilities
available to those who do not have insurance or who are unable to pay for medical care” and that
plaintiff neither sought, nor was denied, medical treatment from indigent care facilities or his
treating sources. Id.
The ALJ also stated that plaintiff’s medical records, from plaintiff’s primary care provider
and from plaintiff’s consultive examination, fail to establish that plaintiff is limited to the extent he
claims. Id.13 The ALJ’s report also suggests that he relied, in part, on the consultive psychologist’s

13

The ALJ did acknowledge that plaintiff’s injuries are severe enough to result in some
limitations; the ALJ stated only that those limitations are not greater than those described
in plaintiff’s RFC, contrary to plaintiff’s testimony. Dkt. # 10-2, at 35.
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opinion that plaintiff was only partially reliable when forming his own credibility analysis. Id. at
36.
The ALJ also considered plaintiff’s work history in assessing his credibility, and he
determined that it made plaintiff less credible. Id. at 37. He noted that plaintiff had worked only
sporadically. Id. The ALJ noted that, at his last job, plaintiff pushed wheelbarrows weighing two
to five hundred pounds. Id. The ALJ believed that, despite the fact that pushing the wheelbarrow
hurt his back, this suggested that plaintiff would be able to do light and sedentary exertional work.
Id.
The ALJ set out the specific evidence he relied on in evaluating plaintiff’s credibility. See
Qualls, 206 F.3d at 1372. He specifically considered the levels of medication taken by plaintiff, the
extensiveness of his attempts to obtain relief, the frequency of his medical contacts, the nature of
his daily activities, and the consistency or compatibility of nonmedical testimony with objective
medical evidence. See Huston, 838 F.2d at 1132. He also considered plaintiff’s work history. The
ALJ’s credibility determination is closely and affirmatively linked to substantial evidence. See id.
at 1133. This Court should not, and will not, upset that determination. Diaz, 898 F.2d at 777.
Plaintiff argues that he should not have been faulted for failing to seek treatment until after
applying for disability benefits. Dkt. # 32 at 10.
Statements may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints, or if the medical reports or records show that the
individual is not following the treatment as prescribed and there are no good reasons
for this failure. However, the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical treatment.

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SSR 96-7p, 1996 WL 374186, at *7. The ALJ considered plaintiff’s statements to be less credible
because he was not seeking treatment for his allegedly disabling pain. Dkt. # 10-2, at 35. The ALJ
believed that a failure to seek treatment was inconsistent with the level of plaintiff’s complaints.
Id. Plaintiff states that the ALJ did not address plaintiff’s explanations for his failure to seek
treatment. Dkt. # 32, at 10. He first states that the ALJ did not consider plaintiff’s aversion to
doctors and his dislike of sharing his symptoms with doctors. Id. However, the ALJ stated that if
plaintiff “were in the constant and disabling condition as alleged, it is reasonable to assume
[plaintiff] would exhaust every means possible to obtain relief.” Dkt. # 10-2, at 35. While not
explicitly stating such, the ALJ’s statement makes clear he considers an aversion to doctors to be
insufficient to stop a claimant in truly disabling pain from seeking to “exhaust every means possible
to obtain relief.”
Plaintiff also cites to an unpublished case, Lee v. Barnhart, 117 Fed. App’x 674, 681 (10th
Cir. 2004), for the proposition that it is an ALJ’s duty to determine whether financial reasons are the
reason plaintiff is not seeking treatment. Dkt. # 32, at 10. A claimant has a legitimate excuse for
failing to receive treatment if the reason for the failure is the inability to pay. Madron v. Astrue, 311
Fed. App’x 170, 178 (10th Cir. 2009). However, there is no error where an ALJ finds that free
medical care is available and the claimant does not dispute that finding. See Qualls, 206 F.3d at
1373 (“The ALJ specifically found that free medical care was available, however, and plaintiff does
not dispute this finding.”). Here, the ALJ found that free medical care was available. Dkt. # 10-2,
at 35 (“There are public facilities available to those who do not have insurance or who are unable
to pay for medical care.”). Plaintiff does not dispute this finding. See Dkt. # 32, at 10-11; Dkt. #

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14, at 10-11; Dkt. # 20, at 9. The ALJ did not err in determining that plaintiff’s failure to seek
treatment negatively affects his credibility.
Plaintiff argues that he should not be faulted for receiving conservative care. “Statements
may be less credible if the level or frequency of treatment is inconsistent with the level of
complaints.” SSR 96-7p, 1996 WL 374186, at *7. The ALJ did not err in determining that plaintiff
was less credible because the level of his care is inconsistent with the level of his complaints.
Plaintiff also argues that his clinical condition is simply more painful than the ALJ believed.
Dkt. # 32, at 11-12. This Court may not reweigh evidence to disturb the a finding of the ALJ.
Daniels v. Apfel, 154 F.3d 1129, 1135 n.8 (10th Cir. 1998). The ALJ’s finding is supported by
substantial evidence, and this Court will not disturb it for this reason.
Plaintiff argues that the ALJ should not have considered plaintiff’s work history in assessing
plaintiff’s credibility. Dkt. # 32, at 12. However, plaintiff has cited no Tenth Circuit authority to
support his contention. Id. In fact, plaintiff acknowledges that Bean v. Chater, 77 F.3d 1210 (10th
Cir. 1995), states that consideration of work history is proper. Id. at 1213; Dkt. # 32, at 12. Plaintiff
argues that the Bean’s underpinnings are suspect, because it is based on a ruling that is no longer
good law. Dkt. # 32, at 12. However, the current ruling states that a credibility assessment should
be based on a consideration of all of the evidence, including statements about the claimant’s “prior
work record and efforts to work.” SSR 96-7p, 1996 WL 374186 at *5. The ALJ did not err in
considering plaintiff’s work history.
Plaintiff also takes issue with the ALJ’s statement that
Although the claimant has described daily activities which are fairly limited, two
factors weigh against these allegations to be strong evidence in favor of finding
[plaintiff] disabled. First, allegedly limited daily activities cannot be objectively
verified with any reasonable degree of certainty. Second, even if [plaintiff’s]
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activities of daily living were truly limited as alleged, it is difficult to attribute that
degree of limitation to the claimant’s medical condition, as opposed to other reasons,
in view of the relatively weak medical evidence and other forms discussed in this
decision.
Dkt. # 10-2, at 34-35. Plaintiff is correct that similar language has been rejected by the Tenth
Circuit as boilerplate language that fails to apply the correct standard for determining credibility
(i.e., relying on evidence that is substantial and closely and affirmatively linked to credibility). See
Swanson v. Barnhart, 190 Fed. App’x 655, 657-58 (10th Cir. 2006). But see Watashe v. Astrue, No.
09-CV-370-PJC, 2010 WL 3022913, at *8 (N.D. Okla. July 28, 2010) (holding that if, after excising
the improper provisions, the ALJ’s credibility analysis is supported by substantial evidence and
complies with legal requirements, the credibility analysis may be affirmed.). However, Swanson is
unpublished. 190 Fed. App’x 655. A later-decided, published Tenth Circuit case rejected Swanson
and held that language similar to that used by the ALJ in this case was merely a common sense
observation, that a lack of objective verification could be used as a factor in evaluating a claimant’s
testimony, and that reversal on that issue would be inappropriate. Keyes-Zachary, 695 F.3d at 116768. As this statement of the ALJ was but one factor in his credibility determination, reversal on this
issue would be inappropriate.
IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 31) is
accepted, and the Commissioner’s decision to deny plaintiff’s claim for disability benefits is
affirmed. A separate judgment is entered herewith.
DATED this 19th day of March, 2014.

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