Bowers v. Social Security Administration

Filing 24

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; accepting 22 Report and Recommendation (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KEVIN DUANE BOWERS,

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

Case No. 13-CV-158-GKF-PJC

OPINION AND ORDER
Before the court is the Report and Recommendation of United States Magistrate Judge
Paul J. Cleary on the judicial review of a decision of the Commissioner of the Social Security
Administration denying Social Security disability benefits [Dkt. #22] and the Objections thereto
filed by plaintiff, Kevin Duane Bowers (“Bowers”). [Dkt. #23]. The Magistrate Judge
recommended the Commissioner’s decision be affirmed, finding that (1) the ALJ properly
weighed the medical evidence; (2) the ALJ properly evaluated Bowers’ credibility; and (3) the
ALJ relied on appropriate vocational expert testimony. Bowers objects to all three of the
Magistrate Judge’s recommended findings.
I. Procedural History
Bowers filed his applications for disability insurance benefits and supplemental security
income benefits on February 7, 2011 and February 23, 2011, respectively. [R. 169-177]. The
applications were denied initially and on reconsideration. [R. 97-105, 115-120]. An
administrative hearing was held before ALJ David W. Engel on August 8, 2012. [R. 42-90]. By
decision dated August 24, 2012, the ALJ found that Bowers was not disabled. [R. 12-28]. On

January 16, 2013, the Appeals Council denied review. [R. 1-5]. As a result, the decision of the
ALJ represents the Commissioner’s final decision for purposes of this appeal. 20 C.F.R. §§
404.981, 416.1481.
II. Standard of Review
Pursuant to Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” However, even under a de novo review of such
portions of the Report and Recommendation, this court’s review of the Commissioner’s decision
is limited to a determination of “whether the factual findings are supported by substantial
evidence in the record and whether the correct legal standards were applied.” Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. It is more than a
scintilla, but less than a preponderance. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (quoting Casias v. Sec’y of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). Even if the court would have reached a
different conclusion, the Commissioner’s decision stands if it is supported by substantial
evidence. Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).
A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C.
§ 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). A disability is a physical or mental
impairment “that results from anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

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42 U.S.C. § 423(d)(3). “Disabled” is defined under the Social Security Act as an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
To meet this burden, plaintiff must provide medical evidence of an impairment and the severity
of that impairment during the time of her alleged disability. 20 C.F.R. §§ 404.1512(c),
416.912(c). “A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [an individual’s] statement of
symptoms.” 20 C.F.R. §§ 404.1508, 416.908. The evidence must come from “acceptable
medical sources,” such as licensed and certified psychologists and licensed physicians. 20
C.F.R. §§ 404.1513(a), 416.913(a). A plaintiff 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 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. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (setting forth the five steps in detail). The claimant bears the burden of proof at
steps one through four. Williams, 844 F.2d at 751 n.2. At step one, a determination is made as
to whether the claimant is presently engaged in substantial gainful activity. Id. at 750. At step
two, a determination is made whether the claimant has a medically determinable severe
impairment or combination of impairments that significantly limit her ability to do basic work
activities. Id. at 750-51. At step three a determination is made whether the impairment is

3

equivalent to one of a number of listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. Id. at 751. If it is, the claimant is entitled to
benefits. Id. If it is not, the evaluation proceeds to the fourth step, where the claimant must
show that the impairment prevents him from performing work he has performed in the past. Id.
If the claimant is able to perform her previous work, he is not disabled. Id. If he is not able to
perform his previous work, then the claimant has met her burden of proof, establishing a prima
facie case of disability. The evaluation process then proceeds to the fifth and final step:
determining whether the claimant has the residual functional capacity (“RFC”)1 to perform other
work in the national economy in view of his age, education, and work experience. Id. The
Commissioner bears the burden at step five, and the claimant is entitled to benefits if the
Commissioner cannot establish that the claimant retains the capacity “to perform an alternative
work activity and that this specific type of job exists in the national economy.” Id.
III. Background
Bowers was born on September 22, 1966 and at the time of the hearing before the ALJ on
August 8, 2012, was 45 years old. [R. 42, 49]. He graduated from high school in 1985 and has a
bachelor’s degree from Oklahoma State University. [R. 50]. He stated that he does not drive but
“every once in a while” drives a motorcycle. [Id.]. He had not driven a motorcycle since
February 2012, when he had a motorcycle accident. [R. 50-51]. He lives in the same house as
his parents, in a separate downstairs apartment, and he relies on them for transportation. [R. 51].
Bowers served in the National Guard from 1989 to retirement, with active duty from
1986 to 1989, in 2003 and in 2007-2008. [R. 51-52]. He has a VA disability rating of 60
percent, which includes 30 percent for a cataract issue. [R. 54]. He has a pending claim with the
1

A claimant’s RFC to do work is what the claimant is still functionally capable of doing on a regular and continuing
basis, despite his impairments: the claimant’s maximum sustained work capability. Williams, 844 F.2d at 751.

4

VA for post-traumatic stress disorder (“PTSD”). [R. 55]. He testified that while stationed in
Iraq, he witnessed public hangings in downtown Iraq. [R. 57].
Bowers testified he has nightmares every night. [R. 60]. The nightmares interfere with
his sleep. [Id.] In a given 24-hour period, he gets two to three hours sleep, including “catnaps”
during the day. [Id.]. He said he is sleepy all the time, and it affects his ability to focus and
concentrate on things. [Id. 61]. He lays down and tries to sleep and otherwise, “really can’t do
anything.” [Id.]. He feels insecure. [Id. 62]. He reads on the computer; he doesn’t have trouble
reading news articles but has to reread parts “all the time.” [Id.]. He has problems with
depression and “feels like I’m . . . going to commit suicide all the time,” but does not have a plan
to do so. [Id. 63].
Bowers rents a private airplane and flies it regularly to keep his rating current. [R. 66].
He always takes someone with him when he flies. [R. 67].
Bowers testified he has problems with hammer toes and it takes him 20 minutes to walk a
half mile because he has to take rests. [R. 64]. His feet hurt all the time. [R. 67]. The problem
gets worse when he walks. [Id.]. The problem started getting worse about September of 2006.
[R. 68]. Elevating his feet helps, and he spends six to seven hours a day getting off his feet and
elevating them. [R. 68-69].
Bowers testified he has problems with headaches. [R. 69]. He gets them “about every
day,” and they last “about four or five hours at a time.” [Id.]. He takes no medication for them,
but lies down and shuts his eyes. [Id.]. He has been diagnosed with tinnitus, and it interferes
with his ability to hear. [R. 70]. He has episodes of dizziness, sweating and feeling sick about
once or twice a week. [R. 70-71]. He takes no medication for them. [R. 71]. He vomits every
time. [Id.].

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Bowers had cataract surgery in December of 2008, but testified he still has trouble seeing.
[R. 71-72]. He has trouble reading the paper. [R. 72]. However, he can fly a plane. [Id.].
Bowers currently smokes electronic cigarettes. [R. 73]. He drinks alcohol but does not
do any street drugs. [R. 74]. He takes care of his own day to day chores, cooking and laundry.
[Id.].
VA records reflect that Bowers was treated for complaints of bad eyesight from 2009
through 2012. [R. 305-310, 369-377, 379-384, 464-466, 570-573, 597-606, 728-731].
On July 27, 2010, Bowers presented to a VA clinic with a complaint of a severe migraine
that had been ongoing for 3-4 weeks. [R. 354-68]. Screenings for depression and PTSD were
both positive. [R. 361, 362]. Bowers was prescribed diclofenac and methocarbamol. [R. 357]. A
CT scan of Bowers’ head on August 30, 2010 was unremarkable. [R. 390]. During an
appointment with a primary care physician on November 16, 2010, Bowers reported daily
headaches lasting 2-3 hours. [R. 335].
Bowers was given a suicide prevention risk assessment screening at the VA by
Emmanuel J. Roman, M.D., on November 29, 2011. [R. 589-597]. On Axis I, Dr. Roman
assessed major depressive disorder, recurrent with psychotic features, and a note to rule out
PTSD. [R 593]. On Axis V, he assessed Bowers’ Global Assessment of Functioning (“GAF”) as
50. [Id.]. He prescribed Sertraline for depression and anxiety and Risperdal for AVH [Auditory
Verbal Hallucinations] and paranoia. [Id.]
Bowers presented at the VA for an annual exam on December 14, 2011. [R. 455-461].
He complained of “daily all day” headaches. [R. 456]. He reported a head injury from an IED
explosion in Iraq in 2008 and another head injury from a motorcycle/truck accident in 2008.
[Id.]. He stated that he didn’t sleep at night due to headaches and “see[ing] things at night,

6

hear[ing] voices.” [Id.]. His hammer toes “hurt all the time.” [Id.]. He eats twice a day and
vomits each time and has diarrhea after each meal. [Id.]. His assessments included major
depressive disorder, recurrent, severe, with psychotic features; headache; and cataracts. [R. 456457].
Bowers returned to the VA for a follow up mental health exam on December 20, 2011.
[R. 583-585]. He presented for a comprehensive psychiatric evaluation on December 23, 2011,
which was completed by River J. Smith, Ph.D. [R. 576-583]. Dr. Smith made an Axis I
diagnosis of major depressive disorder, severe, and PTSD. [R. 582]. On January 5, 2012, he
presented for mental health care at the VA and was seen by Dennis Trost, M.D. [R. 573-576].
His Axis I diagnoses were major depressive disorder, severe; and PTSD. [R. 575]. His GAF was
assessed as 45-50. [Id.]. His medications were adjusted. [Id.]. He was seen by a physician’s
assistant at the VA for follow-up mental health care on February 27, 2012, and his medications
were adjusted. [R. 569-570].
In February 2012, Bowers received extensive treatment, including surgery, at the VA
Outpatient Clinic, after suffering a third-degree burn to his right inner calf from a motorcycle
muffler. [R. 507, 520-537, 541-568, 624-627, 650-690, 694-726, 728]. He reported that on
February 25, he was on his motorcycle putting it in a garage when he fell over and was not able
to get up and the exhaust system burnt his leg for about 20 minutes. [R. 566-567]. Some
bystanders assisted him in removing the motorcycle. [Id.]. He stated he had been drinking
alcohol. [Id.].
Bowers was seen by a psychiatrist, Dr. Dennis Trost, on March 22, 2012. [R. 537-541].
He reported he had quit psychotropic meds in late February after the motorcycle accident. [R.
537]. His Axis I diagnosis was major depressive disorder, severe, and PTSD, with the note

7

“poor control without meds.” [R. 539]. His GAF score was 45-50. [R. 540]. He was started on
prescription medications again. [Id.]. Dr. Trost saw Bowers again on June 22, 2012. [R. 647650]. The doctor noted Bowers’ severe major depressive disorder had improving symptoms;
PTSD was still listed as a diagnosis on Axis I and his GAF score was 55. [R. 649].
Agency examining consultant Michael D. Morgan, Psy.D., conducted a mental status
evaluation of Bowers on July 20, 2011. [R. 413-418]. Bowers told him that being in the army
for 25 years was his most noteworthy type of employment; his problems began to interfere with
his ability to work in 2005, and he last worked on September 24, 2009. [R. 413]. Dr. Morgan
found that Bowers’ legal records were consistent with a history of alcohol dependence. [R. 415].
He found the claimant met the criteria for a recurrent major depressive disorder and PTSD. [Id.].
He included those, as well as alcohol dependence, on his Axis I diagnostic impressions, and
scored Bowers’ GAF as 56-60. [R. 416].
On August 6, 2011, non-examining agency consultant Ron Cummings, Ph.D., completed
a Mental Residual Functional Capacity Assessment and Psychiatric Review Technique Form. [R.
419-436]. On the Psychiatric Review Technique Form, for Listing 12.04 (Affective Disorders),
he found Bowers had recurrent, moderate major depressive disorder based on Dr. Morgan’s
report. [R. 426]. For Listing 12.06 (Anxiety-Related Disorders), he found that Bowers had
anxiety evidenced by “[r]ecurrent and intrusive recollections of a traumatic experience, which
are a source of marked distress.” [R. 428]. For the “Paragraph B Criteria,” Dr. Cummings found
Bowers had a mild restriction of activities of daily living, moderate difficulties in maintaining
social functioning and concentration, persistence or pace, and no episodes of decompensation.
[R. 433]. In the “Consultant’s Notes” portion of the form, Dr. Cummings summarized Dr.
Morgan’s report. [R. 435]. He noted that the Third Party ADL’s (Activities of Daily Living)

8

completed by Bowers’ father on 3/24/11 were “quite limiting in that he described very severe
symptoms and concerns about his son’s mental health,” but the claimant’s ADL’s were not very
limiting and neither was that of Dr. Morgan. [Id.].
In the Mental Residual Functional Capacity Assessment, Dr. Cummings found that
Bowers had marked limitations in his ability to understand and remember detailed instructions,
the ability to carry out detailed instructions and the ability to interact appropriately with the
general public. [R. 419-420]. He found that Bowers was able to maintain concentration,
persistence and pace for a normal work day and work week; able to understand and carry out
simple and some complex work tasks; able to recognize and avoid common work hazards; able
to adapt to changes in the work setting and make decisions regarding work tasks; and able to
work with coworkers and supervisors on a superficial basis without being overly distracted by
psychological symptoms. [R. 421]. He found that Bowers would not be able to work effectively
with the general public due to mood instability. [Id.]. He found Bowers’ report of work
limitations due to a mental impairment was not fully supported by the objective evidence in the
case, and therefore, his claim was deemed to be only partially credible. [Id.].
Agency consultant Bhupinder Walia, M.D. completed a physical examination and report
dated April 30, 2011. [R. 399-404]. Bowers reported pain in his lower legs from his knees to his
toes and said he was fatigued all the time. [R. 399]. Dr. Walia’s physical examination and
findings were normal, and his assessment was chronic leg pain. [R. 400-404].
Agency nonexamining consultant Kenneth Wainner, M.D., completed a Physical
Residual Functional Capacity Assessment of Bowers on June 14, 2011. [R. 405-412]. He found
that Bowers was capable of occasionally lifting up to 50 pounds, frequently lifting up to 25
pounds; standing and/or walking about 6 hours in an 8-hour workday, sitting for about 6 hours in

9

an 8-hour workday, and unlimited pushing and/or pulling, other than as shown for lift and/or
carry. [R. 406]. In his narrative explanation, Dr. Wainner briefly summarized Dr. Walia’s
report. [R. 406-407]. Dr. Wainner found no other limitations. [R. 407-409].
On August 1, 2012, Grant Ward, Ph.D., performed a psychiatric evaluation of Bowers at
the request of Bowers’ attorneys. [R. 757-771]. Dr. Ward completed an Impairment
Questionnaire and a five-page narrative report dated August 7, 2012. [Id.]. Bowers described
himself as “retired military” since September 2009. [R. 767]. He stated he has “no desire to
work and prefers to ride his motorcycle and help his friends with their motorcycles.” [Id.]. He
acknowledged he was willing to perform carpentry work when he is able. [Id.]. Bowers reported
he earned a bachelor’s degree in aviation while in the military, has an active pilot’s license and
flies a rented plane once a month to keep his ratings current. [Id.]. He stated that while on duty
in Iraq, he and his team would ride in a Humvee equipped with a large machine gun on top and
“mow soldiers down” to rescue fellow troops. [R. 767-768]. He reported that he also had the
duty of transporting Iraqi prisoners to be executed by hanging, and had witnessed “a couple 100”
prisoners executed, with some being high profile war criminals. [R. 768]. Bowers denied ever
receiving a brain injury, but stated he received a concussion from a motorcycle accident in 2009.
[R. 769]. He denied any other head injuries and denied any physical injuries from exploding
IEDs. [Id.]. He reported he receives psychiatric services from the VA in Tulsa; his “shrink”
prescribes medications, which he “flushes down the toilet;” and he has requested group therapy
but has been unable to receive it. [R. 770]. Dr. Ward concluded:
Evidence was produced as a result of this examination to fully support the
presence of PTSD for Mr. Bowers. His symptoms cause him to have interpersonal
dysfunction, and he is thought to be at risk for harming others if he is provoked or
intimidated by someone who triggers his re-experiencing symptoms. He has
managed to structure his life in a manner to reduce his anxieties, but he continues
to be disabled by them. In addition to PTSD, Mr. Bowers is thought to have
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depressive symptoms. He is not thought to presently meet diagnostic criteria for a
major depression, though he may have in the past, and currently be in a state of
partial remission. His depressive symptoms include anger, apathy, irritability,
insomnia, and occasional suicidal thoughts.
In summary, Mr. Bowers was found to have mental health conditions that impair
his ability to interact appropriately with the general public, cause him to
experience a great deal of anxiety when he has feelings of loss of control, and
make him a risk to the safety of others if his hypervigilance is triggered by their
appearance and/or behavior.
[R. 771]. Dr. Ward believed Bowers could manage his own funds. [Id.].
On the impairment questionnaire, Dr. Ward indicated that Bowers was “markedly
limited” in four areas: ability to work in coordination with or proximity to others without being
distracted by them; the ability to interact appropriately with the general public; the ability to
accept instructions and respond appropriately to criticism from supervisors; and the ability to get
along with co-workers or peers without distracting them or exhibiting behavioral extremes. [R.
761-762]. He found Bowers was moderately limited in four areas and mildly limited in four
areas. [R. 760-763]. He found no evidence of limitation in eight areas. [Id.]. He opined that
Bowers was capable of tolerating low-stress work, but was likely not capable of a 40-hour work
week, especially if interaction with others was required. [R. 764-765].
IV. Decision of the ALJ
In his decision, the ALJ found that Bowers met insured status requirements through
December 31, 2014. [R. 15]. At Step One, the ALJ found that Bowers had not engaged in any
substantial gainful activity since his alleged onset date of September 24, 2009. [Id.]. At Step
Two, the ALJ found that Bowers had severe impairments of service-connected military
disabilities and allied disorders. [Id.]. At Step Three, he found that Bowers did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. The ALJ found that
11

Bowers had the RFC to perform a full range of light and sedentary work. [R. 17]. He found that
Bowers could not climb ropes, ladders or scaffolds and was unable to work in environments
where he would be exposed to unprotected heights and dangerous moving machinery. [Id.]. He
found that Bowers could understand, remember and carry out simple to moderately detailed
instructions in a work-related setting and could interact with co-workers and supervisors under
routine supervision. [Id.]. At Step Four, the ALJ determined that Bowers had no past relevant
work. [R. 26]. At Step Five, the ALJ found there were a significant number of jobs in the
national economy that Bowers could perform, taking into account his age, education, work
experience and RFC. [R. 26-28]. Therefore, the ALJ found that Bowers was not disabled at any
time from September 24, 2009 through the date of his decision. [R. 28].
On appeal, Bowers argues (1) the ALJ failed to properly weigh the reports of Dr. Ward
and the agency examining and nonexamining consultants; (2) The ALJ failed to properly
evaluate Bowers’ credibility; and (3) The ALJ relied on flawed vocational expert testimony. The
Magistrate Judge, in his Report and Recommendation, found to the contrary with respect to each
of these arguments. Bowers objects to these findings.
A. Whether the ALJ Properly Weighed the Medical Evidence
As the Magistrate Judge noted, Bower’s first argument is limited to the evidence of the
mental health examining and nonexamining consultants. The ALJ, in his decision, gave “little
weight to the opinion of Dr. Ward, a consultative psychologist, at the request of the claimant’s
representative.” [R. 26]. The ALJ explained:
It is emphasized that the claimant underwent the examination that formed the
basis of [the] opinion in question not in an attempt to seek treatment for the
symptoms, but rather, through attorney referral and in connection with an effort to
generate evidence for the current appeal. Further, Dr. Ward was presumably paid
for the report and opinion. Although such evidence is certainly legitimate and

12

deserves due consideration, the context in which it was produced cannot be
entirely ignored.
[Id.]. In contrast, the ALJ gave “great weight” to the opinions of the agency examining and
nonexamining consultants, and concluded that the medical evidence and opinions were
consistent with the RFC he had found. He stated, “Further, the state agency physicians, who are
experts in assessing the physical and mental limitations that reasonably flow from a medical
condition, have concluded the claimant can reasonably be expected to perform at the light
exertional level with the non-exertional limitations found by the ALJ.” [Id.].
The ALJ is required to “consider all evidence in [the] case record when he make[s] a
determination or decision whether [claimant is] disabled.” 20 C.F.R. § 404.1520(a)(3). “He may
not pick and choose among medical reports, using portions of evidence favorable to his position
while ignoring other evidence.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
However, “our limited scope of review precludes this court from reweighing the evidence or
substituting our judgment for that of the [Commissioner].” Flaherty v. Astrue, 515 F.3d 1067,
1071 (10th Cir. 2007).
A non-examining physician’s opinion is an acceptable medical source, which the ALJ is
entitled to consider. Id. (citing 20 C.F.R. § 404.1513(a)(1)).
With respect to the issue at hand, generally, the opinion of a treating physician is given more
weight than that of an examining consultant, and the opinion of a nonexamining consultant is
given the least weight. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Bowers complains that the ALJ rejected Dr. Ward’s opinion only because Dr. Ward
evaluated him on referral from his attorney and because the report was paid for, and while the
Tenth Circuit has not spoken on this issue, other circuits have held a medical opinion cannot be

13

discounted on the basis that it was obtained at the request of counsel. However, this is not an
accurate reading of the ALJ’s decision.
Although Dr. Ward’s Psychological Report includes the caption, “Techniques: Mental
Status Examination, Review of Documentation,” the body of the report consists entirely of a
recitation of statements Bowers made to Dr. Ward during the interview. [R. 767-771]. There is
no reference in the body of the report to any other source. Indeed, the ALJ, in his summary of
the evidence, observed, “Counsel’s retained expert elicited subjective statements from the
claimant to support his assertions of PTSD from combat service in Iraq.” [R. 22].
The ALJ pointed out numerous inconsistencies between Bowers’ statements at the
hearing and his statements to health care professionals. For example, at the hearing, Bowers
reported serving one tour of duty in Iraq, while he reported to the consultative examiner (Dr.
Morgan) that he had served three tours. [R. 18]. At the hearing, he stated that he would “love to
work” if only he could, but he told Dr. Ward “he had no desire to work” and stated he would
rather go out on his motorcycle and ride with his friends. [R. 19]. He reported he was sleepy all
the time, but he “was quite wide awake and alert during his hearing and responsive to all
questioning without noticeable problems.” [R. 18]. He claimed he has had foot pain from
hammertoes for 20 years, but he “was able to remain physically fit to the point of engaging in his
alleged combat operations in Iraq in 2007-2008,” and “[w]hen asked how is it that his foot
condition was good enough to get him his alleged ‘combat operations’ in Iraq and now suddenly
rendered him unable to work in a peacetime environment once he had returned home, he had no
good explanation.” [R. 18].
In conducting its review of the ALJ’s decision, the court “should, indeed must, exercise
common sense,” and “cannot insist on technical perfection.” Keyes-Zachary, 695 F.3d at 1166.

14

Where the court “can follow the adjudicator’s reasoning in conducting [its] review, and can
determine that correct legal standards have been applied, merely technical omissions in the
ALJ’s reasoning do not dictate reversal.” Id. Here, it is apparent from the ALJ’s summary of the
evidence that he did not find Bowers’ testimony to be credible, and the lack of credibility
undermined his confidence in Dr. Ward’s report, which appears to have been based entirely on
Bowers’ own subjective statements to Dr. Ward.2 Accordingly, the court agrees with the
Magistrate Judge that the ALJ did not commit reversible error in giving little weight to Dr.
Ward’s opinion evidence. See White v. Barnhart, 287 F.3d 903, 908-909 (10th Cir. 2001).
B. Credibility Assessment
The Tenth Circuit has stated:
Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.
However, findings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.
Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (quotations and citations omitted).
Further, “[t]he ALJ enjoys an institutional advantage in making the type of determination at issue
here” because “[n]ot only does an ALJ see far more social security cases than do appellate
judges, he or she is uniquely able to observe the demeanor and gauge the physical abilities of the
claimant in a direct and unmediated fashion.” White, 287 F.3d at 910.
The use of “boilerplate findings” is insufficient to support the ALJ’s credibility
determination only “in the absence of a more thorough analysis.” Hardman v. Barnhart, 362
F.3d 676, 679 (10th Cir. 2004).
The court agrees with the Magistrate Judge’s finding that although the decision includes
some boilerplate findings, the ALJ provided ample reasons supporting his finding as to Bowers’
2

Issues pertaining to credibility of Bowers’ testimony are further addressed in § B below.
15

credibility. In addition to the discrepancies listed in § A above, the ALJ identified the following
inconsistencies:


[Bowers] allegedly witnessed “war criminals” being hung in the streets of Iraq
and alleged[ly] witnessed hundreds of Iraqis being publicly hanged during his
single tour of duty in 2007-2008 where he served as a vehicle driver, not an active
duty military policeman (in the military, prisoners of war are handled exclusively
by the military police, not truck drivers or supply specialists as implied in this
case). [R. 18].



He cannot drive because his vision does not allow him to do so [but testified that
he can ride his motorcycle regularly, at least up until his motor vehicle accident in
February 2012 where he wrecked his bike and apparently does not have one now
to ride]. He also testified that he flies a small plane at least once a month to
maintain his small pilot’s license [freely admitting that his testimony was that he
could not drive a car, but could ride a motorcycle and fly a plane. He had no
suitable explanation for this inconsistency and no explanation of [how] he could
possibly meet the Federal Aviation Administration (FAA) vision requirements if
he cannot see as he alleges. [R. 19].



During a follow-up visit to the VA clinic December 20, 2011, he reported he
suffered two traumatic brain injuries, the first from an IED explosion in Iraq and
the second after his return home, in a motorcycle/truck accident [R. 584], but the
ALJ noted “the assertion of an IED injury in Iraq has been shown false by VA
records.” [R. 21].



In his visit with Dr. Ward, he denied ever receiving a brain injury, but stated he
received a concussion from a motorcycle accident in 2009, “not consistent with
his assertion of traumatic brain injury in Iraq as he alleged earlier,” he denied any
other head injuries and “[h]e denied any physical injuries from exploding IEDs.”
[R. 22].

The ALJ may properly consider inconsistencies between the claimant’s hearing testimony
and information he provided to the agency and/or medical professionals. See Harris v. Astrue,
2012 WL 3893128, at *4 (10th Cir. 2012) (citing SSR 96-7p, 1996 WL 374186, at *5)
The court concurs with the Magistrate Judge’s conclusion that the ALJ made a credibility
assessment that was supported by substantial evidence and that complied with legal
requirements.

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C. Limitations Related to Paragraph B Criteria
Bowers contends the ALJ committed reversible error when he failed to include all
limitations found by the mental health physicians in his RFC. Dr. Cummings, in his residual
functional capacity assessment, found that Bowers had marked limitation in his ability to interact
appropriately with the general public. [R. 420-421]. Bowers is correct that the ALJ failed to
include this limitation in his RFC. [R. 17]. The ALJ is not allowed to include some limitations
found by consultants in his RFC and to omit other limitations without explanation. Haga v.
Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007). However, the omission was harmless, as the ALJ
included the limitation in the hypothetical he posed to the vocational expert, stating, “Assume
interaction with the general public only occasionally,” and the jobs identified by the vocational
expert did not require frequent interaction with the public, [R. 81-83].3
Bowers also contends that the ALJ’s RFC and hypothetical to the vocational expert failed
to include his Paragraph B Criteria findings of “moderate” difficulties in social functioning and
in concentration, persistence or pace. The Tenth Circuit has rejected Bowers’ argument that
Paragraph B Criteria findings must be included in the RFC. See Lull v. Colvin, 535 Fed. Appx.
683, 685-86 (10th Cir. 2013) (rejecting plaintiff’s argument that the paragraph B criteria should
have been included in the RFC and explaining the difference between the mental RFC
assessment form, which is used at steps 4 and 5 of the sequential evaluation process, and the
Psychiatric Review Technique, paragraphs B and C, which is used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process).

3

The vocational expert identified the following jobs: bagger, DOT 582.687-010, 1991 WL 684303; racker, DOT
524.687-018, 1991 WL 674400; table worker, DOT 739.687-181, 1991 WL 680217; final assembler, DOT 713.687018, 1991 WL 679271; and screw-eye assembler, DOT 737.687-122, 1991 WL 680071.
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V. Conclusion
For the reasons set forth above, Bowers’ Objection to the Magistrate Judge’s Report and
Recommendation [Dkt. #23] is overruled, the Magistrate Judge’s Report and Recommendation
[Dkt. #22] is adopted, and the decision of the Commissioner is affirmed.
ENTERED this 3rd day of July, 2014.

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