Proctor v. Social Security Administration

Filing 31

OPINION AND ORDER by Magistrate Judge Gerald B Cohn affirming Commissioner's decision (Re: 2 Social Security Complaint ) (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NIKEYA PROCTOR,

CASE NO. 4:17-cv-00165-GBC

Plaintiff,
v.

(MAGISTRATE JUDGE COHN)

NANCY A. BERRYHILL, 1
Deputy Commissioner for Operations,
performing the duties and functions not
reserved to the Commissioner of Social
Security,

OPINION AND ORDER TO DENY
PLAINTIFF’S APPEAL

Defendant.
OPINION AND ORDER TO DENY PLAINTIFF’S APPEAL
This matter is before the undersigned United States Magistrate Judge for decision. Nikeya
Proctor (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security
Administration’s decision finding of not disabled. As set forth below, the Court DENIES
Plaintiff’s appeal and AFFIRMS the Commissioner’s decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act
(“Act”), a claimant bears the burden to demonstrate 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); accord 42 U.S.C. § 1382c(a)(3)(A).
The Act further provides that an individual:
1

Ms. Berryhill, Deputy Commissioner for Operations, is leading the Social Security
Administration, pending the nomination and confirmation of a Commissioner. Pursuant to Federal
Rule of Civil Procedure 25(d), Deputy Commissioner for Operations Berryhill should be
substituted as the defendant in this action. No further action need be taken to continue this suit by
reason of the last sentence of the Social Security Act, 42 U.S.C. § 405(g).

shall be determined to be under a disability 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, regardless of whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental
impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§
423(d)(3), 1382c(a)(3)(D).
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 (10th Cir. 1988)
(setting forth the five steps in detail). “If a determination can be made at any of the steps that a
plaintiff is or is not disabled, evaluation under a subsequent step is not necessary.” Williams, 844
F.2d at 750. The claimant bears the burden of proof at steps one through four. See Wells v. Colvin,
727 F.3d 1061, 1064 at n.1. (10th Cir. 2013). If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the national economy that a person with
the claimant’s abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported by
substantial evidence. See e.g., 42 U.S.C. § 405(g) (“court shall review only the question of
conformity with such regulations and the validity of such regulations”); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is more than a scintilla but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. See id. Substantial evidence “does not mean a large or considerable amount
of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court’s review is based on the record, and
the Court will “meticulously examine the record as a whole, including anything that may undercut
or detract from the [Administrative Law Judge’s (“ALJ’s”)] findings in order to determine if the
substantiality test has been met.” Id. The Court may neither reweigh the evidence nor substitute its
judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005). Even if the Court might have reached a different conclusion, if supported by substantial
evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th
Cir. 2002).
II. BACKGROUND
A.

Procedural History and Childhood Disability
Plaintiff received supplemental security income (“SSI”) benefits based on disability as a

child. (Tr. 10). In May 2009, Plaintiff was provided with an Individualized Education Plan (“IEP”)
due to her disorders in attention, visual, and auditory processing which affected her progression in
reading, comprehension, and math. (Tr. 213-22). She was on track to get a certificate of high school
completion but needed to improve her grades in order to pass the high school exit exam. She was
interested in attending college and worked selling newspapers. (Tr. 213-17). She was polite, quiet,
and non-disruptive, and did well with individual work when she applied herself. Her social
behavior was “school appropriate,” she interacted socially with her peers, and behavior
management was not needed. (Tr. 213-17, 220).
As required by law, eligibility for SSI benefits was re-determined when Plaintiff attained
age eighteen. (Tr. 10). Plaintiff turned eighteen in April 2009, and it was determined Plaintiff was
no longer disabled as of September 1, 2014. Id. at 10, 12, 19. At the administrative hearing,

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Plaintiff appeared and waived right to counsel, and a vocational expert also testified. Id. at 10. On
September 22, 2015, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 10-21). On
February 22, 2017, the Appeals Council denied Plaintiff’s request for review (Tr. 1-6), making the
ALJ’s decision the Commissioner’s final decision for purposes of judicial review. See 20 C.F.R.
§ 422.210(a).
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges five errors: (1) The Appeals Council failed to properly consider
new evidence; (2) the Plaintiff was not given proper notice regarding representation and the ALJ
failed in his duty to fully develop the record; (3) the finding that Plaintiff’s impairment does not
meet a Listing is not supported by substantial evidence; (4) the ALJ failed to properly consider the
medical source opinions; and (5) the ALJ’s evaluation of the Plaintiff’s allegations is not supported
by substantial evidence. (Pl. Br. at 3-4, Doc. 22).
A.

Post-Decisional Evidence
1.

Appeals Council

Plaintiff states the Appeals Council erred in finding the additional evidence did not relate
to the relevant time period. (Pl. Br. at 4). The ALJ reviewed the record in order to make a decision.
Evidence submitted to the Appeals Council is evaluated if it is new, material, and related to the
period on or before the date of the ALJ’s decision. Chambers v. Barnhart, 389 F.3d 1139, 1142
(10th Cir. 2004). When the Appeals Council rejects additional evidence in support of a claim, and
the plaintiff objects, the court may review the information to resolve the matter of whether it was
correctly rejected. Krauser v. Astrue, 638, F.3d 1324, 1328 (10th Cir. 2011). The Appeals Court
noted:
We also looked at the records from Indian Health Care Resource Center
dated August 31, 2016 (16 pages). The ALJ decided your case through September
22, 2015. This new information is about a later time. Therefore, it does not affect
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the decision about whether you were disabled beginning on or before September
22, 2015.
If you want us to consider whether you were disabled after September 22,
2015, you need to apply again.
(Tr. 2). The undersigned has also reviewed the additional evidence and agrees the Appeals Council
reasonably found the new evidence dated after the ALJ’s September 22, 2015 decision. (See Supp.
Tr. 296-311). The evidence related to a time period after the decision, and thus, it did not provide
a basis for changing the decision. (Tr. 2). Plaintiff argues the new evidence supports the opinion
of the psychological consultative examiner. (Pl. Br. at 5). However, the additional evidence shows
Plaintiff continued to report the same issues the ALJ considered, i.e., learning disorder, anxiety,
disorder, and depressive disorder. (See generally Tr. 296-311).
B.

Right to Counsel and ALJ Duty to Develop
Plaintiff states she was not given proper notice regarding her right to counsel at the hearing,

and the ALJ should have further developed the record. (Pl. Br. at 6-7). Plaintiff signed a waiver of
her right to representation on the same day as the hearing. (Pl. Br. at 7) (citing Tr. 124). A District
Court in New Mexico recently reviewed a case where the plaintiff alleged he did not knowingly
waive the right to counsel:
The Social Security Administration’s (“SSA”) Hearings, Appeals and
Litigation Law Manual (“HALLEX”) requires where a claimant is unrepresented,
“the ALJ will ensure on the record that the claimant has been properly advised of
the right to representation and that the claimant is capable of making an informed
choice about representation.” SSA, HALLEX I-2-6-52, available at
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-52.html. ALJ’s are not required
to “recite specific questions regarding the right to representation or the claimant’s
capacity to make an informed choice about representation.” Id. If a claimant is
illiterate, the ALJ must explain that both free and contingent representation is
available to the claimant. Id. …
The Tenth Circuit only requires written notice that advises a claimant of
their right to be represented by counsel. See Carter v. Chater, 73 F.3d 1019, 1021
(10th Cir. 1996) (neither 42 U.S.C. § 404.1706 406(c) nor 20 C.F.R. § 404.1706
requires more than written advisement of the claimant’s right to be represented);

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Garcia v. Califano, 625 F.2d 354, 356 (10th Cir. 1980) (neither the statute nor the
regulations require anything more than written notice of the claimant’s right to
representation by an attorney).
Villalobos v. Colvin, No. CV-15-00463-CG, 2016 WL 10588059, at *4 (D. N.M. Mar. 29, 2016).
As Plaintiff signed a written notice waiving her right to counsel, the ALJ satisfied the requirements
of HALLEX and the Tenth Circuit. (Tr. 124). “The ALJ’s duty to develop the record is heightened
when a claimant is unrepresented. However, a claimant’s pro se status does not, in and of itself,
mandate a reversal.” See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992). In this case,
the ALJ reviewed Plaintiff’s impairments and evidence in the record:
The claimant has the following severe impairments: learning disorder,
anxiety disorder, and depressive disorder …
At the administrative hearing, the claimant testified about her background
and medical condition. The claimant testified that she was not working at the time
of the hearing. She stated that she lived by herself in an apartment. The claimant
confirmed that she received a certificate for completing the 12th grade. She also
verified at least 51 percent of her classes were in regular classes. The claimant
alleged that learning problems, anxiety, and depression limited her ability to work.
The claimant contended that she had difficulty comprehending and completing
tasks. She claimed that she took longer than others when she attempted to complete
tasks. In terms of activities of daily living, she testified that she read, went to the
library, performed math problems, performed chores, cleaned, used public
transportation, prepared meals, and shopped for groceries …
Edward Jasinski, Ph.D., a psychologist, testified as a medical expert. Dr.
Jasinski was present at the hearing by telephone and reviewed all the medical
exhibits of record prior to testifying. He had the opportunity to question the
claimant. He testified that there was little support in the evidence or school records
to support the opinion of the psychological consultative examiner. He elaborated
that there is insufficient evidence in the file to find that the claimant had marked
mental limitations. He implied that the impairments neither singly nor in
combination met or equaled a medical listing. Based on his education, knowledge,
experience, and review of the record, he indicated in his opinion, the claimant
would have the following limitations: the claimant would be limited to simple
repetitive tasks with limited social interaction …
On September 10, 2014, [Kathy Vandenburgh, Ph.D.] evaluated the
claimant. The claimant complained of learning problems, anxiety, and depression.
The mental status examination revealed the following positive findings: the
claimant was easily stressed, felt depressed, had problems focusing, appeared

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childlike, and had difficulty persisting through tasks. Cognitive testing revealed
scores in the extremely low range, including a full-scale IQ score of 59. The
findings from the mental status examination were otherwise unremarkable. Dr.
Vandenburgh diagnosed mood disorder and learning disorder. Based on the
examination, from a psychological standpoint, she opined that the claimant had
moderate to marked mental limitations, including having marked impairment
working in a typical work setting.
(Tr. 12, 15, 17-18). Thus, the ALJ reviewed the opinions of the psychologists and Plaintiff’s severe
impairments of a learning disorder, anxiety disorder, and depressive disorder. From the record, the
ALJ found Plaintiff had the Residual Functional Capacity (“RFC”) to perform:
a full range of work at all exertional levels but with the following nonexertional
limitations: the claimant is limited to simple repetitive tasks; she can have no teamoriented tasks; she can have no public contact; and there can only be simple changes
in the work environment or at the worksite.
(Tr. 15). The ALJ formulated the RFC from consideration of all of the evidence. At the hearing,
the ALJ questioned Plaintiff:
ALJ:

We’re here because of a request that you filed on a continuing

disability review case. Your request for hearing was March 12, 2015. Your exhibit
folder has the following pre-marked exhibits in it. There was one sent to you in the
mail. Did you take the time to open it?
CLMT:

Yes.

ALJ:

Okay. On that disk, it has the following numbered exhibits. 1A

through 4A, 1 through 11B, 1 through 5D, 1E through 16E, 1F through 10F. Do
you know any legal reasons why any of those documents do not belong in your file
folder?
CLMT:

No, I do not.

ALJ:

All right. They’re received into evidence at this time.

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(Tr. 32). Plaintiff contends the ALJ should have obtained additional school records, but she does
not specify how those records would have changed the decision. (Pl. Br. at 8). Plaintiff also
contends the ALJ’s questions were not adequate. (Id. at 9-10). However, the ALJ confirmed with
Plaintiff she went to the library, read young adult books, and had never been on any medications
or been hospitalized. (Tr. 38) (“You enjoy going to the library. You read young adult books.
You’ve never been on medications for psychiatric issues nor have you been hospitalized, is that
correct?” “Yes.”). Id.
Plaintiff further argues Dr. Jasinski did not testify how Dr. Vandenburgh’s report was
inconsistent with the rest of the record. (Pl. Br. at 9). Dr. Jasinski stated he did not “see any
evidence of” Dr. Vandenburgh’s finding of Plaintiff’s “childlike presentation” from the medical
exhibits, other interactions, and school records.” (Tr. 34).
In sum, the record in this case was adequately developed and included Plaintiff’s IEP, the
limited medical visits to Kaiser, two psychological evaluations, and testimony from a medical
expert. See Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (“The ALJ does not have to
exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning.
The standard is one of reasonable good judgment. The duty to develop the record is limited to fully
and fairly developing the record as to material issues.” The record was sufficient to render a
decision regarding Plaintiff’s disability claim, and the ALJ was not required to further develop the
record.
//
//
//
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C.

Listed Impairment
1.

12.05(B) Intellectual Disability

Plaintiff contends the ALJ erred by finding Plaintiff did not meet the requirements of
Listing 12.05(B) (intellectual disability). (Pl. Br. at 10-11). Listing § 12.05(B) provides a claimant
is disabled per se as follows:
12.05 Intellectual disability: Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22. The required level
of severity for this disorder is met when the requirements in A, B, C, or D are
satisfied …
B. A valid verbal, performance, or full scale IQ of 59 or less.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(B). 2 From the definition, the ALJ found Plaintiff’s IQ
scores were invalid:
The claimant had a full-scale IQ score of 59, processing speed score of 65, working
memory score of 63, and perceptual reasoning score of 56. However, the [ALJ]
finds that these scores are not valid. These scores do not reflect the claimant’s true
cognitive functioning based on the other evidence of her adaptive functioning. For
example, these scores are inconsistent with the claimant’s ability to complete the
12th grade. In addition, these scores are contradicted by the absence of significant
mental health findings in the record. In addition, these scores are inconsistent with
the claimant’s ability to read, go to the library, and solve math problems. These
scores are also at odds with the [ALJ’s] personal observations that the claimant was
able to comprehend and understand questions at the hearing. Lastly, these scores
are contradicted by the testimony of the impartial medical expert, who opined that
these findings are inconsistent with the medical records. Accordingly, the [ALJ]
finds that these IQ scores are invalid.
(Tr. 14). Thus, the ALJ found Plaintiff did not meet the requirements for Listing 12.05 (intellectual
disability). While Dr. Vandenburgh concluded Plaintiff had a had a full-scale IQ score of 59 (Tr.

2

The agency issued new regulations concerning the mental listings in September 2016, which took
effect on January 17, 2017. Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed.
Reg. 66138-01 (Sept. 26, 2016). Since these changes were not in effect at the time of the ALJ’s
decision in this case, the Court cites the September 2015 version of the regulations.

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252), the ALJ found this score invalid due to Plaintiff’s ability to complete the 12th grade, read
books, go to the library, and solve math problems. (Tr. 14). Moreover, the ALJ cited the testimony
of Dr. Jasinski, who found the evidence in the record was inconsistent with the low IQ scores. (See
Tr. 34). See also Flores v. Astrue, 285 F. App’x 566, 568–69 (10th Cir. 2008) (unpublished) 3
(holding that “[i]t is within the province of an ALJ to make factual determinations regarding the
validity of an IQ score, that is, whether the IQ score is ‘an accurate reflection of [a claimant’s]
intellectual capabilities’” and finding that it is proper for an ALJ to consider the narrative report
accompanying the IQ testing “because ‘the results of intelligence tests are only part of the overall
assessment.’”). In this case, the ALJ found Plaintiff’s other activities and finishing high school
demonstrated evidence of her adaptive functioning and inconsistent with low IQ scores. (Tr. 14).
Moreover, Dr. Vandenburgh diagnosed Plaintiff with borderline intellectual functioning, not
intellectual disability. (Tr. 253). Plaintiff’s IEP was for standard learning disabilities as opposed
to intellectual disabilities. (Tr. 291-92). The absence of a diagnosis of intellectual disability is
notable, as the medical criteria for a diagnosis of intellectual disability mirrors the criteria of the
capsule definition of Listing 12.05. See 67 Fed. Reg. at 20,022. Therefore, substantial evidence
supports the ALJ’s finding Plaintiff did not meet the criteria for intellectual disability under Listing
12.05(B).
D.

Weight to Medical Evidence
1.

State Agency Psychologists

Plaintiff contends the ALJ improperly evaluated and weighed the medical source opinions.
(Pl. Br. at 11). In the decision, the ALJ made the following observations regarding the reports by
the state agency psychologists:

3

10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential but may be cited for
their persuasive value.”
10

The [ALJ] has given great weight to the opinion of the impartial medical
expert, Dr. Jasinski … his opinion regarding the claimant’s functional limitations
is highly credible because it is well supported by the objective medical evidence
already discussed in this decision.
The [ALJ] assign[s] partial weight to the opinion of the State agency
psychologists. These opinions found that the claimant was limited to unskilled work
and should avoid hazards. The limitation to unskilled work is generally consistent
with the claimant’s ability to complete the 12th grade. Further, these opinions are
supported by the absence of significant limitations or positive findings in the
records. In addition, these opinions are consistent with the claimant’s ability to
perform activities of daily living normally. However, the [ALJ] does not adopt the
limitation of avoiding hazards. This limitation is inconsistent with the claimant’s
ability to use public transportation and go outside independently. In addition, the
[ALJ] has included additional limitations such as avoiding the public and being
limited to simple changes in the workplace to take into account for the claimant’s
subjective complaints about anxiety and focusing on tasks. The [ALJ] has adopted
those specific restrictions on a function-by-function basis [because they] are best
supported by the objective evidence as a whole.
The [ALJ] assigns little weight to the opinion of the psychological
consultative examiner, Kathy Vandenburgh, Ph.D. … The [ALJ] assigns little
weight to this opinion because it is inconsistent with substantial evidence. First, it
is inconsistent with the claimant’s ability to complete the 12th grade and receive a
certificate of completion. Further, this opinion is contradicted by the claimant’s
ability to perform activities of daily living normally, such as using public
transportation, dressing herself, performing personal care tasks, going out of the
house independently, reading, and managing funds. Third, this opinion is internally
inconsistent because the mental status examination noted that the claimant was able
to recall details, able to “focus on tasks,” and able to recall four digits forward.
Fourth, this opinion is contradicted by the opinion of the impartial medical expert
who opined that there was no support in the record for the examiner’s limitations.
The [ALJ] assigns more weight to the opinion of the medical expert because he had
an opportunity to review the entire file. Last, her opinion is inconsistent with the
evidence. For example, the examiner stated that the claimant was immature and
childlike. Yet, school records confirm that the claimant was polite, quiet, nondisruptive, and she performed well with individual work. Accordingly, the [ALJ]
assigns little weight to this opinion.
(Tr. 17-18.) Plaintiff states Dr. Vandenburgh’s opinion is entitled to the greatest weight. (Pl. Br.
at 15). Plaintiff argues the ALJ supplied no reasoning for giving the opinion little weight. Id.
Plaintiff states the ALJ found the opinion inconsistent with the ability to complete the 12th grade.
Id. Plaintiff states she struggled to complete the 12th grade by taking special education classes due

11

to disorders in attention, visual, and auditory processing. Id. Plaintiff also states the ALJ failed to
explain how the opinion was inconsistent with the activities of daily living. Id.
The ALJ discounted Dr. Vandenburgh’s opinion that Plaintiff had moderate to marked
mental limitations, including having marked impairment working in a typical work setting,
because it was inconsistent with the record evidence. (Tr. 18; Tr. 253-54). See 20 C.F.R. §
416.927(c)(4) (an ALJ considers whether an opinion is consistent with the record as a whole).
Specifically, the ALJ found the opinion was inconsistent with Plaintiff’s ability to complete the
12th grade as well as her testimony she read and solved math problems at home. (Tr. 18, 37).
Moreover, her IEP indicated she worked “well” on individual problems and had no more than
moderate limitations. (Tr. 13, 216, 226). Somewhere between fifty and seventy percent of her
classes were in general education, as opposed to special education. (Tr. 18, 39, 226). The ALJ also
found Dr. Vandenburgh’s opinion was inconsistent with Plaintiff’s activities of daily living. (Tr.
15, 18). Plaintiff was able to use public transportation, care for her personal needs, read, manage
her funds, and live by herself. (Tr. 15, 18, 37). See Castellano v. Sec’y of Health & Human Servs.,
26 F.3d 1027, 1029 (10th Cir. 1994) (claimant’s daily activities were a reason for rejecting treating
physician’s opinion the claimant was totally disabled).
Plaintiff alleges Dr. Vandenburgh never said she had problems focusing, and therefore, her
report was not internally inconsistent as the ALJ concluded. (Pl. Br. at 13). Plaintiff also contends
Dr. Vandenburgh was not inconsistent, as the ALJ found, when she observed Plaintiff was
immature and childlike in contrast to school reports of her being polite, quiet, non-disruptive, and
performing well. Id. Dr. Vandenburgh noted Plaintiff was able to recall details, “focus on tasks,”
recall four digits forward, had no difficulty following a simple routine or instructions, and had no
difficulty paying attention for at least two hours. (Tr. 251, 254). The ALJ noted this was

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inconsistent with Dr. Vandenburgh’s opinion Plaintiff would have a marked impairment in a job
setting. (Tr. 18, 253-54). See 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory findings, the
more weight we will give that opinion.”); 20 C.F.R. § 416.927(c)(4) (consistency); see also
Castellano, 26 F.3d at 1029 (ALJ reasonably discounted treating physician opinion which was not
supported by his own notes).
Finally, Plaintiff argues the ALJ found Dr. Vandenburgh’s opinion was contradicted by the
medical expert, Dr. Jasinski. (Pl. Br. at 13). Plaintiff states the ALJ erred in giving Dr. Jasinski’s
opinion great weight because he was a mental health specialist, was aware of all the medical
evidence, and has an understanding of the disability program. (Pl. Br. at 13-14) (citing Tr. 17). Dr.
Jasinski opined there was no support in the record for Dr. Vandenburgh’s opinion, and it was
inconsistent with record evidence. (Tr. 34-36). Dr. Jasinski observed while Dr. Vandenburgh stated
Plaintiff was child-like, school records indicated otherwise. (Tr. 34). Notably, school records
observed Plaintiff was polite, quiet, non-disruptive, and performed well with her individual work.
(Tr. 18, 216, 253).
Plaintiff argues the ALJ erred in reasoning Dr. Jasinski was aware of all the medical
evidence. (Pl. Br. at 15). Plaintiff notes Dr. Vandenburgh reviewed all of the evidence except for
the IEP report. (Pl. Br. at 15) (citing Tr. 214). Plaintiff notes Dr. Jasinski did not say the IEP report
was inconsistent. (Pl. Br. at 15). Indeed, Dr. Vandenburgh diagnosed Plaintiff with borderline
intellectual functioning, not intellectual disability. (Tr. 253). Plaintiff’s IEP was for standard
learning disabilities as opposed to intellectual disabilities. (Tr. 291-92).
Thus, the ALJ could properly rely on Dr. Jasinski’s opinion to find Plaintiff could perform
simple repetitive tasks with the limitations of no team-oriented tasks; no public contact; and only

13

be simple changes in the work environment or at the worksite. (Tr. 15). Plaintiff has not shown an
additional limitation was required in the RFC. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(“the burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination.”)
E.

Credibility Analysis
Plaintiff states the ALJ erred in finding her allegations of disabling limitations not credible.

(Pl. Br. at 16-18). Plaintiff further states the ALJ erred by noting she failed to seek treatment and
her daily activities were inconsistent with disabling limitations. (Id. at 16-17). The ALJ reviewed
the record to evaluate Plaintiff’s credibility:
The [ALJ] finds that the claimant’s activities of daily living are inconsistent
with the claimant’s testimony regarding disability and demonstrate the capacity for
work. At the hearing, the claimant confirmed that she read, went to the library,
performed math problems, performed chores, cleaned, used public transportation,
prepared meals, and shopped for groceries … Some of the physical and mental
abilities and social interactions required in order to perform these activities are the
same as those necessary for obtaining and maintaining employment. The claimant’s
ability to participate in such activities undermines the credibility of the claimant’s
allegations of disabling functional limitations because such activities are
inconsistent with disability …
The [ALJ] discounts the claimant’s credibility based on her failure to seek
regular treatment. The claimant reported a history of depression, anxiety, and
learning disorder, but the objective evidence is devoid of significant evidence of
the claimant ever seeing a psychiatrist consistently, being hospitalized for
psychiatric treatment, or receiving any specialized psychiatric care. This is
inconsistent with the alleged severity of her mental limitations and functional
limitations and diminishes the credibility of those allegations. Further, nowhere in
the record does the claimant indicate that the reason for the long gaps in treatment
was an inability to pay or lack of insurance. Accordingly, based on the evidence in
the record, the failure to seek consistent care undermines the claimant’s claims of
disabling symptoms …
The evidence of record fails to support greater limitations than those
assessed above. The claimant made subjective complaints about difficulty with
comprehension and focusing. School records also suggest that the claimant was
below grade level in certain subjects. Despite the claimant’s complaints, however,
the medical evidence of record reveals mild findings. First, there is minimal
evidence in the record to establish any significant limitations. Second, the claimant

14

reported that she was able to complete the 12th grade. Third, the claimant was
polite, was qu[iet], and worked well with individual work. In addition, the claimant
was able to participate in normal educational classes for 70 percent of the school
day. Last, the IEP report and Kaiser Permanente records failed to note any
significant limitations. Accordingly, the evidence of record is consistent with the
above RFC assessment.
(Tr. 16-17). Although recently the Social Security Administration has eliminated the use of the
term “credibility” from the agency’s sub-regulatory policy, the agency continues to evaluate a
disability claimant’s symptoms using a two-step process:
First, we must consider whether there is an underlying medically
determinable physical or mental impairment(s) that could reasonably be
expected to produce an individual’s symptoms, such as pain. Second, once an
underlying physical or mental impairment(s) that could reasonably be expected
to produce an individual’s symptoms is established, we evaluate the intensity
and persistence of those symptoms to determine the extent to which the
symptoms limit an individual’s ability to perform work-related activities for an
adult ...
Soc. Sec. Ruling (“SSR”) 16-3p; Titles II & XVI: Evaluation of Symptoms in Disability Claims,
2016 WL 1119029 at 2 (Mar. 16, 2016) (superseding SSR 96-7p; Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186 (July 2, 1996)). 4
At step one of the process, “[a]n individual’s symptoms ... will not be found
to affect the ability to perform work-related activities for an adult ... unless medical
signs or laboratory findings show a medically determinable impairment is present.”
Id. at 3. At step two, the ALJ may consider, among other things, a number of factors
in assessing a claimant’s credibility, including the levels of medication and their
effectiveness, the extensiveness of the attempts ... 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 ... and the consistency or
compatibility of nonmedical testimony with objective medical evidence.

4

SSR 16-3P was issued after the date of the ALJ’s decision in this case. However, the two-step
process substantially restates the prior two-step process set forth in SSR 96-7, which was
characterized by the Tenth Circuit as a three-step process set forth in Luna v. Bowen, 834 F.2d
161, 163-64 (10th Cir. 1987), the seminal case regarding credibility followed in the Tenth Circuit.
See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012).
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Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); see 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3). In this case, the ALJ found the objective medical evidence did not support
Plaintiff’s allegations. (Tr. 16-17). While school records suggested she was below grade level in
certain subjects, she was able to complete the 12th grade and participate in seventy percent general
education classes (rather than special education). (Tr. 17, 39, 216, 226, 253). Moreover, medical
records failed to note any significant mental or physical limitations. (Tr. 17, 227-48). See 20 C.F.R.
§ 416.929(c)(4) (“we will evaluate your statements in relation to the objective medical evidence”);
see also SSR 96-7p, 1996 WL 374186, at *6-7 (stating an ALJ may consider the objective medical
evidence in evaluating allegations).
The ALJ also discounted Plaintiff’s statements because she did not seek regular treatment
for her alleged history of anxiety, depression, and learning disorder. (Tr. 17). See 20 C.F.R. §
416.929(c)(3)(iv)-(v) (an ALJ considers the type of treatment). Plaintiff acknowledges lack of
treatment may be a valid reason for the allegations of depression and anxiety, but it would be
invalid for an untreatable learning disorder. (Pl. Br. at 16). Although Plaintiff may not need to see
a psychologist for a learning disorder, she nevertheless alleged depression and anxiety, and her
failure to seek treatment for these conditions erodes her credibility, as noted by the ALJ.
A claimant’s failure to seek medical treatment is a proper factor in assessing
the credibility of a claim of severe impairment. See SSR 96-7p, 1996 WL 374186,
at *7 (July 2, 1996); Keyes-Zachary, 695 F.3d at 1167 (stating that when evaluating
credibility, the ALJ should consider, among other items, the claimant’s regular
contact with a physician and her willingness to try any prescribed treatment).
White v. Berryhill, 704 F. App’x 774, 778 (10th Cir. 2017). Moreover, she did not allege she could
not afford treatment. (Tr. 16).
Finally, the ALJ’s observations at the administrative hearing led him to conclude that
Plaintiff’s statements were not consistent. (Tr. 16). Plaintiff was well dressed and groomed, had
direct speech, understood and answered all questions, gave testimony, remembered events,
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addresses, and phone numbers, and had a clear understanding of the proceedings. (Tr. 16). Plaintiff
contends the ALJ should not have used this to discredit her allegations of disabling limitations.
(Pl. Br. at 16-17). While not conclusive by itself, the ALJ could consider this as a factor in making
his findings. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000) (“Although an ALJ may
not rely solely on his personal observations to discredit a claimant’s allegations, he may consider
his personal observations in his overall evaluation of the claimant’s credibility.”). A district court
in Kansas upheld a decision where an ALJ gave the greatest weight to a psychological assessment
and found the plaintiff’s allegations not credible based on the evidence in the record:
In making his RFC findings, the ALJ gave the greatest weight to the
opinions of Dr. Ward because, according to the ALJ, the opinions of Dr. Ward were
based upon personal observations and objective testing. For this reason, the ALJ
found symptoms not credible to the extent that they are inconsistent with the RFC.
Plaintiff alleges error because of the ALJ’s failure to include in the RFC a finding
that plaintiff needs constant reminders to stay on task. However, Dr. Ward did not
include such a limitation in his report, and such a limitation was not mentioned in
the mental RFC assessment by Dr. Stern or in the mental RFC assessment by Dr.
Cohn. No medical opinion evidence supported this limitation. Furthermore, the
ALJ gave valid reasons in his decision for discounting the testimony of the plaintiff
and his father on this issue, citing to school records (which included a teacher’s
report showing no limitation in the ability to attend and complete tasks), the fact
that plaintiff completed high school, passed a driver’s test, and could learn simple
tasks. The court will not reweigh the evidence. On these facts, substantial evidence
supports the decision of the ALJ not to include this limitation in his RFC findings.
Mellington v. Astrue, No. 10-1362-SAC, 2011 WL 6055576, at *5 (D. Kan. Dec. 6, 2011).
Similarly, in this case, the ALJ found Plaintiff’s allegations of disabling limitations not credible
based on the findings by Dr. Jasinski; school records showing Plaintiff attended 51-70 percent
regular classes; by Plaintiff’s IEP; and obtained a certificate from completing high school. (Tr. 15,
17-18, 39, 226). Thus, the ALJ could properly rely on this evidence to find Plaintiff could perform
simple repetitive tasks with the limitations of no team-oriented tasks; no public contact; and only
simple changes in the work environment or at the worksite. (Tr. 15). Plaintiff has not shown an
additional limitation was required in the RFC. The Court is not to disturb an ALJ’s credibility
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findings if they are supported by substantial evidence because “[c]redibility determinations are
peculiarly the province of the finder of fact.” Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir.
2008) (quoting Kepler, 68 F.3d at 391). Plaintiff fails to demonstrate how any alleged error would
have changed the outcome of the case. See Sanders, 556 U.S. at 409-10. Based on the foregoing,
substantial evidence supports the ALJ’s credibility determination. See SSR 96-7p; 20 C.F.R. §§
404.1529, 416.929.
Therefore, the record provided substantial evidence to support the ALJ’s decision. It is not
the reviewing court’s position to reweigh the evidence or substitute judgment. As the Tenth Circuit
has explained:
“In reviewing the ALJ’s decision, we neither reweigh the evidence nor substitute
our judgment for that of the agency.” Branum v. Barnhart, 385 F.3d 1268, 1270
(10th Cir. 2004). Rather, we examine the record as a whole to ascertain whether the
ALJ’s decision to grant benefits for a closed period, and to deny benefits thereafter,
is supported by substantial evidence and adheres to the correct legal standards. See
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). It is “more than
a scintilla, but less than a preponderance.” Id.
Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013). Accordingly, the decision provides
substantial evidence a reasonable mind might accept as adequate to support the ALJ’s conclusion
Plaintiff could perform a significant number of jobs in the national economy.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s appeal and AFFIRMS the
Commissioner’s decision in this case.
SO ORDERED on July 24, 2018.

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