Tesh v. Social Security Administration
Filing
17
OPINION AND ORDER by Magistrate Judge Christine D Little ; affirming the Commissioner's decision. (CDL1, Chambers)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
CARL W. T.,
Plaintiff,
v.
MARTIN O’MALLEY,1
Commissioner of the
Social Security Administration,
Defendant.
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Case No. 22-CV-560-CDL
OPINION AND ORDER
Plaintiff seeks judicial review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying Social Security disability benefits. The
parties have consented to proceed before a United States Magistrate Judge in accordance
with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court affirms the
Commissioner’s decision.
I.
Standard of Review
The Social Security Act (the Act) provides disability insurance benefits to
qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The
Act defines “disability” as an “inability to engage in any substantial gainful activity by
1
On December 20, 2023, Martin O’Malley was sworn in as the Commissioner of the
Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), O’Malley
is substituted as the defendant in this action. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
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.” See 42 U.S.C. § 423(d)(1)(A).
Judicial review of a Commissioner’s disability determination “‘is limited to
determining whether the Commissioner applied the correct legal standards and whether the
agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.
Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756
F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S. Ct. 1148, 1154 (2019). “Evidence
is not substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).
So long as supported by substantial evidence, the agency’s factual findings are
“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may
not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d
at 1178.
II.
Background and Procedural History
The plaintiff filed a Title II application and protectively filed a Title XVI application
for disability benefits on September 2, 2020, alleging a disability onset date of July 27,
2017. (R. 16). The plaintiff alleged disability due to a combination of impairments,
identified in agency records as “Bipolar I Disorder, mix, severe, with psychotic features;
2
Amphetamine Type Substance abuse Disorder; Unspecified personality disorder;
generalized anxiety disorder; need neck surgery; [and] back issues.” (R. 145). He was 39
years old on the alleged onset date. Id.
During the time since his alleged onset date, the plaintiff lived with his mother until
her death in April 2020. Several months later, he began living in a shelter. The plaintiff
dropped out of school before completing high school. (R. 59). He has never been married
and has no children.
During the administrative appeal process, he was living in the Lighthouse shelter
and working there as an assistant cook. (R. 60). He works part-time, but sometimes works
“up to” 40 hours per week, although this work does not constitute substantial gainful
activity within the meaning of the Act. (Id.; see R. 19). Previously, he worked as a home
health aide, receiving pay for taking care of his mother during her illness. (R. 60).
The plaintiff’s application was denied on initial review and on reconsideration. An
Administrative Law Judge (ALJ) held a hearing via videoconference on May 19, 2022. (R.
54-86). The plaintiff and a vocational expert (VE) provided testimony. See id. The ALJ
denied benefits in a decision dated July 5, 2022. (R. 16-53). The Appeals Council issued a
decision on October 25, 2022 denying the plaintiff’s request for review of the ALJ’s
decision. (R. 1-6). Following the Appeals Council’s denial, the plaintiff timely filed a
Complaint in this Court. (See Doc. 2). Accordingly, the Court has jurisdiction to review
the ALJ’s July 5, 2022 decision under 42 U.S.C. § 405(g).
3
III.
The ALJ’s Decision
The Commissioner uses a five-step, sequential process to determine whether a
claimant is disabled and, therefore, entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(i)(v). A finding that the claimant is disabled or is not disabled at any step ends the analysis.
See id.; see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). The claimant bears the burden on steps one
through four. Lax, 489 F.3d at 1084.
At step one, the claimant must demonstrate that he is not engaged in any substantial
gainful activity. See Lax, 489 F.3d at 1084. Here, the ALJ determined the plaintiff’s work
at the Lighthouse shelter did not meet the level of substantial gainful activity. (R. 19).
Accordingly, the ALJ proceeded to step two.
At step two, the claimant must establish an impairment or combination of
impairments that is severe. See Lax, 489 F.3d at 1084. Here, the ALJ determined that the
plaintiff has severe impairments of lumbar spine degenerative disc disease, bipolar
disorder, generalized anxiety disorder, unspecified personality disorder, other specific
personality disorder, adjustment disorder, and PTSD. (R. 19). The ALJ found the plaintiff
has additional, non-severe impairments, including
obesity, essential hypertension, type II diabetes mellitus, status post
right arm fracture and surgery with present deformity, mild cervical
spine degenerative disc disease, right carpal tunnel syndrome (status
post release), right plantar fasciitis and right heel spur (status post
plantar fascial release and heel spur resection), urinary frequency,
reflux esophagitis/GERD, mild diverticulosis, diverticulitis,
nonbleeding internal hemorrhoids, chronic pancreatitis, moderate
hepatic steatosis, diarrhea, anemia, vitamin D deficiency, migraine
headaches, asthma, mild COPD, obstructive sleep apnea, nicotine
4
dependence, seasonal allergies, blurred vision, insomnia, and
polysubstance use disorder (including methamphetamine) in
remission.
Id.
At step three, the ALJ determines whether the claimant’s severe impairment or
impairments is equivalent to one that is listed in Appendix 1 of the regulation, which the
Commissioner “acknowledges are so severe as to preclude substantial gainful activity.”
Williams, 844 F.2d at 751 (internal quotation and citation omitted); see 20 C.F.R. §§
404.1520(d); 20 C.F.R. Part 404, subpt. P, app’x 1 (Listings). Here, the ALJ found that the
plaintiff’s physical and mental impairments do not meet or equal the criteria for any
Listing, specifically noting Listings under Sections 1.00 (musculoskeletal system) and
12.00 (mental disorders). The ALJ also discussed the “paragraph B” criteria—four areas
of mental functioning used to determine whether a claimant’s mental impairments
functionally equal a Listing. See 20 C.F.R. § 404 Subpt. P App’x 1. The ALJ found that
the plaintiff has a moderate limitation in understanding, remembering, and applying
information; a moderate limitation in interacting with others; a moderate limitation in
concentrating, persisting, or maintaining pace; and a moderate limitation in adapting or
managing oneself. (R. 19-24). Because the plaintiff does not have at least one extreme or
two or more marked limitations, the ALJ found the paragraph B criteria are not satisfied.
(R. 26).
At step four, the claimant must show that his impairment or combination of
impairments prevents him from performing work he has performed in the past. The ALJ
first determines the claimant’s residual functional capacity (RFC) based on all the relevant
5
medical and other evidence. 20 C.F.R. § 404.1520(e); see also Winfrey v. Chater, 92 F.3d
1017, 1023 (10th Cir. 1996). The ALJ next determines the physical and mental demands
of the claimant’s past relevant work. Winfrey, 92 F.3d at 1023. Finally, the ALJ determines
whether the RFC from phase one allows the claimant to meet the job demands found in
phase two. Id.
Here, the ALJ determined that the plaintiff has the RFC to perform
“light” work as defined in 20 CFR 404.1567(b) and 416.967(b) with
occasional climbing of ramps and stairs; no climbing of ladders,
ropes, or scaffolds; occasional balancing, stooping, kneeling,
crouching, and crawling; and no walking on uneven surfaces. He is
also limited to unskilled work, which is simple, repetitive, and
routine. His supervision must be simple, clear, and concise. He may
have occasional interpersonal contact with supervisors and
coworkers. He cannot perform work requiring a specific production
rate, such as assembly line work or work requiring hourly quotas. He
will need regular work breaks every two hours, as normally allowed
in competitive work. He should have only occasional, wellexplained workplace changes. He should have no contact with the
general public.
(R. 26-27). The ALJ found that the plaintiff does not have any past relevant work. (R. 44).
However, citing the VE’s testimony, the ALJ found that the plaintiff can perform
alternative jobs existing in significant numbers in the national economy, including (1) hand
packager, Dictionary of Occupational Titles (DOT) # 559.687-074, light exertion,
unskilled work, specific vocational preparation (SVP) Level 2, with approximately
336,000 such jobs available in the national economy; (2) housekeeping cleaner, DOT #
323.687-014, light exertion, unskilled work, SVP Level 2, with approximately 917,000
such jobs available in the national economy; and (3) conveyor line bakery worker, DOT
# 524.687-022, light exertion, unskilled work, SVP Level 2, with approximately 165,000
6
such jobs available in the national economy. Id. As such, the ALJ found the plaintiff not
disabled at step five. (R. 36).
IV.
Discussion
The plaintiff argues that the ALJ’s decision failed to adequately support the physical
and mental RFC determination with specific evidence in the record. He contends that his
physical impairments limited his ability to walk and his mental impairments limit his ability
to work on a continuing and ongoing basis. The plaintiff also alleges the ALJ committed
legal error at step five by failing to reconcile a conflict between the mental RFC and the
jobs identified by the VE. The Commissioner responds that the ALJ properly considered
the combined effects of plaintiff’s impairments and the ALJ’s decision is legally sound and
supported by substantial evidence.
The ALJ’s written decision “must include a narrative discussion describing how the
evidence supports each conclusion” as to the claimant’s work-related limitations. Social
Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7 (July 2, 1996).2 The ALJ must
support the limitations included in the RFC determination with citations to “specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” Id. Additionally, the ALJ must “explain how any material inconsistencies
or ambiguities in the evidence” of record were considered and resolved. Id.
2
A claimant's RFC is his “maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis,” despite his medical
impairments and symptoms. Id. at *2 (emphases in original).
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A.
Physical RFC
Although confusingly organized, the plaintiff’s brief argues that the ALJ failed to
adequately address certain evidence regarding his severe lumbar degenerative disc disease
and other physical impairments. The plaintiff asserts that his physical impairments leave
him unable to perform the standing and/or walking required of light work and/or to perform
work on a regular and continuing basis, as set forth in SSR 96-8p. Specifically, he points
to the medical source statement of his podiatrist, Nicole Cupp, D.P.M., dated April 29,
2022, and the prior administrative findings of Herbert Meites, M.D., dated June 9, 2021.
The ALJ’s decision must articulate how the ALJ considered the medical opinions
or prior administrative medical findings from each medical source. 20 C.F.R. §
404.1520c(b)(1).3 The most important factors for the ALJ to consider are supportability
and consistency, and the ALJ’s decision must explain how he considered those factors in
determining persuasiveness of a medical source’s medical opinions or prior administrative
medical findings. Id. § 404.1520c(b)(2).4
Here, Dr. Cupp performed an endoscopic right plantar fascial release and right heel
spur resection on February 25, 2022. (See R. 39). Afterward, the plaintiff used a knee
scooter temporarily, but by the time of the ALJ hearing on May 19, 2022, plaintiff could
3
For claims filed on or after March 27, 2017, such as the plaintiff’s claim here, the
Commissioner does not “defer or give any specific evidentiary weight, including
controlling weight, to any medical opinions.” 20 C.F.R. § 404.1520c(a).
4
The ALJ must also consider the medical source’s relationship with the claimant,
specialization, and other factors, but the ALJ’s decision is not required to specifically
address those additional factors. Id. § 404.1520c(c).
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walk, although he testified that he was still in pain. (R. 64). As discussed in the ALJ’s
decision, Dr. Cupp’s April 29, 2022 medical source statement indicates that the plaintiff
is capable of lifting and/or carrying commensurate with the
performance of “medium” work, but is limited to standing two hours
at a time for a total of four hours in an eight-hour workday, and
walking three hours at a time for a total of four hours in an eighthour workday. Dr. Cupp further opined that the [plaintiff] can
occasionally stoop and climb ramps and stairs, but can never
balance, stoop, kneel, crouch, crawl, and climb ladders or scaffolds,
and cannot walk a block at a reasonable pace on rough or uneven
surfaces.
(R. 39).
The ALJ found Dr. Cupp’s opinion unpersuasive. First, the ALJ found that the
opinion lacks support, as Dr. Cupp “merely listed[] ‘plantar fasciitis’ as supporting the
limitations she opined.” Id. Further, the ALJ noted that Dr. Cupp’s examination records
indicated that prior to surgery, plaintiff had intact sensation, equal and symmetric bilateral
deep tendon reflexes, and good range of motion in the lower extremities. (R. 39-40). For a
period of time after surgery, the plaintiff was instructed to avoid weight-bearing, but
otherwise records indicated that his wound was healing well and his neurovascular status
was intact. (R. 40). The ALJ thus adequately addressed the supportability factor.
The ALJ also found Dr. Cupp’s opined limitations were not consistent with other
evidence in the record, citing the plaintiff’s own statement that he stopped using his walker
in April 2022. Id. The ALJ explained that, apart from temporary periods when the plaintiff
used assistive devices around his lumbar surgeries, he was able to walk unassisted, and
medical records reflected that he rarely showed deficits in gait or “exhibit[ed] the abnormal
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range of motion findings that would be consistent with the postural and other limitations
Dr. Cupp opined.” Id.
The ALJ’s evaluation of Dr. Cupp’s opinion is legally sound and supported by
substantial evidence. See 20 C.F.R. § 404.1520c(b)(3). Plaintiff argues that prior to his
plantar fasciitis surgery, the record shows multiple occasions when he used a walker,
demonstrated an abnormal gait, sought pain management in connection with various
physical impairments. However, the ALJ’s decision specifically addressed this evidence,
and explained how the ALJ considered it in light of the record as a whole. (See R. 39-40).
For example, the ALJ’s decision noted that a consultative examination one month prior to
Plaintiff’s July 2017 alleged onset date reflected that Plaintiff walked with a normal,
steady, symmetric gait and exhibited normal range of motion. (R. 29, 844). With respect to
his foot-related impairments, despite temporary periods when plaintiff experienced greater
pain or limitations, such as during recovery after his surgery, “Dr. Cupp’s records indicate
no assistive device usage noted until after . . . surgery, and recorded no deficits in gait prior
to surgery.” (R. 40).
The ALJ acknowledged that a state agency reviewing consultant, Dr. Meites, on
reconsideration found that the plaintiff could perform the full range of sedentary work. Id.
The ALJ found this opinion unpersuasive, noting that another state agency consultant found
plaintiff had no severe physical impairment at all. The ALJ acknowledged certain evidence
that “arguably supported” Dr. Meites’ sedentary rating—for example, plaintiff’s
complaints of pain in April 2021, when he was observed ambulating with a walker and
displayed a slow and slightly antalgic gait on the right. Id. However, the ALJ noted that
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despite “isolated abnormal examination findings,” on most occasions the plaintiff had a
normal range of motion, normal gait, and was in no acute distress. Furthermore, the ALJ
acknowledged that plaintiff’s records “substantiate exacerbated lumbar symptoms”
beginning in 2020, but explained the record “do[es] not indicate that these exacerbated
symptoms lasted at least 12 months.” Id. As such, under applicable agency guidelines, the
ALJ reasonably concluded that the period of exacerbated lumbar symptoms did not
establish an “inability to engage in [substantial gainful activity] because of the impairment
that . . . last[ed] the required 12-month period.” SSR 82-52.5
As the Tenth Circuit has explained, “there is no requirement in the regulations for a
direct correspondence between an RFC finding and a specific medical opinion on the
functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
Rather, “the ALJ, not a physician, is charged with determining a claimant’s RFC from the
medical record.” Id. (internal citations and quotation marks omitted). Here, the ALJ’s
decision addressed the reliability and supportability of the medical opinions and prior
administrative findings in the record, and substantial evidence supports the ALJ’s
conclusions. Nothing further was required. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
5
SSR 82-52, referenced in the plaintiff’s opening brief, was rescinded and replaced
on November 7, 2023 with SSR 23-1p. The agency began following SSR 23-1p “beginning
on its applicable date,” but the agency’s ruling indicates that the prior ruling 82-52 still
applies as to decisions made prior to its being rescinded. SSR 23-1p n. 5. Moreover, SSR
23-1p uses similar language in explaining that “[a]n individual’s inability to perform
[substantial gainful activity] because of the relevant [impairments] must also last the
required 12-month period.”
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The plaintiff points to evidence that he claimed to have used a walker for six months
in 2020, and that he was observed limping or using assistive devices and sought treatment
for pain on several occasions in 2021 and early 2022. He argues that the record as a whole
shows persistent problems standing and walking during that time period.
Contrary to plaintiff’s suggestion, the ALJ did not ignore this evidence—rather, as
set forth above, the ALJ acknowledged the plaintiff had periods of exacerbated lumbar
symptoms. However, in discussing the medical opinions and administrative findings, the
ALJ concluded that longitudinal medical records during the relevant period “belie [the
plaintiff’s] statements to [his neurosurgeon in December 2020] that he had been using a
walker since circa June 2020.” (R. 32). Despite “some abnormal findings related to his
lumbar spine,” the plaintiff had “no focal neurological deficit and normal sensory, motor,
and coordination, and reported that his pain was well-controlled.” (R. 32-33).6
Plaintiff argues that the ALJ failed to consider the combined impact of his
impairments, including his nonsevere impairments of multi-joint arthritis, chronic pain
syndrome, obesity, and diabetes. (See Pl. Br., Doc. 10 at 10). However, plaintiff fails to
show that the ALJ ignored any significantly probative evidence relating to these conditions
or their functional consequences. The focus of a disability determination is on the
6
The plaintiff’s hearing testimony further supports the ALJ’s assessment. When
asked whether he can walk without a walker or cane, the plaintiff testified that, at the
moment, he was “doing pretty good without it.” (R. 62). He kept the walker nearby in case
of a “bad day” with shooting pain, and had used it “for a few days” the month before the
hearing. However, he “tr[ied] not to use it at all,” and testified he was “doing pretty good.
I started doing pain management and they’ve been helping me with it and everything.” Id.
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functional consequences of a condition, not the mere diagnosis. See 20 C.F.R. § 416.921
(“[The ALJ] will not use your statement of symptoms, a diagnosis, or a medical opinion to
establish the existence of an impairment.”); see also Higgs v. Bowen, 880 F.2d 860, 863
(6th Cir. 1988) (“The mere diagnosis of arthritis, of course, says nothing about the severity
of the condition.”); SSR 96-8p (“When there is no allegation of a physical or mental
limitation or restriction of a specific functional capacity, and no information in the case
record that there is such a limitation or restriction, the adjudicator must consider the
individual to have no limitation or restriction with respect to that functional capacity.”).
Here, the ALJ’s decision states that the ALJ considered any limitations arising from
these non-severe impairments, and acknowledged evidence relating to his arthritis and
weight. (See R. 30, 32, 37, 43). The ALJ also referenced plaintiff’s allegations of and
treatment for pain throughout the record in detail in explaining the RFC determination.
(See R. 27-40). The plaintiff has failed to show any reversible error by the ALJ in
addressing the evidence relating to his combined physical impairments.
B.
Mental RFC
Plaintiff challenges the mental RFC determination, arguing that his bipolar disorder
and other mental impairments render him unable to perform work on a regular and
continuing basis. The plaintiff objects to the ALJ’s treatment of the consultative
psychological opinion of Melinda Shaver, Psy.D., who examined the plaintiff on December
19, 2020. Dr. Shaver reported that the plaintiff “appeared to be a reliable informant.” (R.
1061). The plaintiff informed Dr. Shaver that he was applying for disability due to his back
problems and difficulty walking. Id. As recounted in the ALJ’s decision, the plaintiff told
13
Dr. Shaver that he “was cooking and helping in the kitchen at the Lighthouse homeless
shelter, is able to manage his own finances, needs no help with self-care, and does some
cooking and cleaning.” (R. 41).
Dr. Shaver noted that plaintiff socializes with his brother and other people at the
shelter and attends church. He appeared “able to complete some tasks in a timely and
appropriate manner.” (R. 1061-1062). During Dr. Shaver’s examination, the plaintiff
demonstrated appropriate behavior and coherent, relevant speech, and denied experiencing
hallucinations. (R. 1062). His “sensorium appeared to be clear,” and he was oriented to
time, person, place, and purpose, although he demonstrated a poor fund of knowledge. Id.
He was able to perform serial 7s from 100 and spell “world” forward and backward. Dr.
Shaver estimated his intelligence as average. (R. 1063). She found his insight “fair” and
his judgment to be “good.” Id.
Dr. Shaver concluded her report by stating that plaintiff’s “prognosis is fair. He is
currently not receiving mental health treatment or taking medication. [The plaintiff] does
not appear emotionally capable of employment.” Id. She opined that the plaintiff can
manage benefit payments in his own interest. (R. 1064).
The ALJ found Dr. Shaver’s conclusion that the plaintiff is not capable of
employment unpersuasive. The ALJ found this statement unsupported in Dr. Shaver’s own
examination, noting plaintiff’s own report that he was cooking and helping in the kitchen
at the Lighthouse shelter, managed his own finances, and did not need help with his selfcare. (R. 41). The ALJ also noted that a reviewing consultant with the state agency made
similar observations, concluding that plaintiff “evidenced within normal limits functioning
14
on mental status examination and reported ability to cook, clean, manage finances,
socialize, maintain self-care, and also reported that he has a driver’s license.” (R. 42).
The ALJ also contrasted Dr. Shaver’s conclusion with plaintiff’s “contemporaneous
statements to his own medical sources” throughout the record that he was able to manage
his symptoms. (R. 41). Moreover, the ALJ found Dr. Shaver’s opinion was inconsistent
with the “preponderance of other mental status examination findings regarding attention
and concentration” throughout the record. (R. 42).
Plaintiff points to portions of the record documenting episodes where his mental
health symptoms became acute, and times when he sought treatment from ER or walk-in
clinics. (See R. 1001 (in August 2016, plaintiff was referred for medication adjustment
after he “beat the shit out of [his] door”); R. 1005 (in February 2020, he was “agitated” and
described his behavior as “mean” after relapsing on methamphetamines); R. 1007-1009
(plaintiff reported having been arrested twice after “hit[ting] his mother a couple of
times.”); R. 1013 (in February 2020, plaintiff reported he had not taken his meds since June
of 2019); R. 1033 (a February 19, 2020 report by a case manager indicating the plaintiff’s
mother had reported “she was afraid of [plaintiff] and she believes that if she is removed
from the home [the plaintiff] may hurt her or himself.”); R. 1035 (The following week, a
case manager visited plaintiff’s house and learned plaintiff’s mother was “outside, in the
misty rain, no shoes and no jacket” while the plaintiff was reportedly inside the house,
“throwing objects including glass.”)).
But the ALJ did not ignore or downplay this evidence; in fact, the ALJ’s decision
reasonably addressed the significantly probative evidence from the relevant time period,
15
noting that on three occasions plaintiff “exhibited agitated, hostile behavior . . . in
connection with methamphetamine use,” but noting evidence that at other times, he
reported taking a class to learn to control his anger. (R. 22). Moreover, the ALJ noted that
elsewhere in the record, the plaintiff “stated that he gets along fine with authority figures
and has never lost a job due to difficulty getting along with others.” (R. 23). The plaintiff
also reported to Dr. Shaver in December 2020 that he “ha[d] been clean and sober from
methamphetamine for about two-and-a-half years now.” (R. 37).
The plaintiff argues that the ALJ ignored the fact that bipolar disorder is
characterized by euthymic states, suggesting the ALJ placed too much weight on instances
when he reported his mental symptoms were “not that bad.” However, the ALJ’s decision
shows that he considered the impact of plaintiff’s bipolar I disorder over time, but
reasonably concluded that the overall record did not support Dr. Shaver’s conclusion. (See
R. 41) (noting plaintiff’s “contemporaneous statements to his own medical sources . . . that
he was doing okay without medications and managing symptoms, and that his mood was
more stable” and his report in January 2021 “that his depression was currently ‘not that
bad,’ and ‘comes and goes.’”).
The plaintiff has shown no error in the ALJ’s mental RFC findings at step five.
Rather, the plaintiff is asking the Court to re-weigh the evidence, which it may not properly
do. See Lax, 489 F.3d at 1084 (“The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” (citation and quotation omitted)); see also Richardson
v. Perales, 402 U.S. 389, 399 (1971) (“We . . . are presented with the not uncommon
16
situation of conflicting medical evidence. The trier of fact has the duty to resolve that
conflict.”).
C.
Step Five
The plaintiff argues that the ALJ improperly failed to resolve a discrepancy between
the mental RFC limitation to “simple, repetitive, and routine work” and the VE’s testimony
that a person with that RFC could perform jobs identified as reasoning level 2. However,
the applicable case law does not support this argument. See Hackett v. Barnhart, 395 F.3d
1168, 1176 (10th Cir. 2005) (noting that Level 2 reasoning “appears more consistent with”
an RFC for “simple and routine” work tasks); Stokes v. Astrue, 274 F. App’x 675, 684
(10th Cir. 2008) (unpublished) (rejecting argument that limitation to “simple and routine
work tasks” is inconsistent with Level 2 reasoning); see also Ray v. Comm’r of Soc. Sec.,
No. CIV-18-629-SM, 2019 WL 1474007, at *5 (W.D. Okla. Apr. 3, 2019) (unpublished)
(finding that Level 2 reasoning does not, “on its face,” conflict with an RFC limited to
simple work-related instructions and tasks; collecting cases); compare Paulek v. Colvin,
662 F. App’x 588, 594 (10th Cir. 2016) (unpublished) (citing Eighth Circuit holding that
“a limitation to simple instructions is inconsistent with both level-two and level-three
reasoning,” but noting that Tenth Circuit has not ruled “whether a limitation to simple and
routine work tasks is analogous to a limitation to carrying out simple instructions”). Under
the existing case law, there was no apparent conflict between the DOT and the VE’s
testimony identifying jobs with GED Level 2 reasoning, and therefore the ALJ did not
commit reversible error in accepting the VE’s testimony.
17
The plaintiff notes that the ALJ apparently relied on the prior administrative
findings of William Farrell, Ph.D., that the plaintiff could understand, recall, and perform
simple, repetitive tasks. (See R. 42). He argues that Dr. Farrell’s findings are not consistent
with the performance of level 2 reasoning jobs, because in his paragraph B findings, Dr.
Farrell found plaintiff ‘markedly’ limited in understanding, remembering, and carrying out
detailed instructions. (R. 190-191). The plaintiff argues this finding conflicts with the
requirements of one of the alternative jobs the ALJ identified at step five, inspector and
hand packager, which would require a worker to follow detailed instructions.
Even assuming plaintiff were correct, and the hand packager job were eliminated,
the remaining jobs identified at step five number close to one million, which is a sufficient
number such that, under Tenth Circuit precedent, no reasonable administrative factfinder”
could have concluded that an insufficient number of alternative jobs exist consistent with
plaintiff’s vocational profile and RFC. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004). As such, any such error would not warrant remand, since there is no reason to
believe remand would result in a different outcome.7
Moreover, the ALJ here did not impose any RFC limitations that on their face
conflict with reasoning level 2. While the ALJ found Dr. Farrell’s assessment “more
7
For the same reason, the Court rejects the plaintiff’s suggestion that the bakery
worker job should have been eliminated based on the RFC restriction on work requiring a
specific production rate. Moreover, no apparent conflict existed, because while the DOT
indicates the job may involve using a conveyor line to inspect, add decorating details, or
monitor machine application of ingredients to a cake, it does not indicate the work must be
performed according to a specified pace or quota. See DOT 524.687-022.
18
persuasive” than the initial reviewer’s findings, the ALJ did not adopt Dr. Farrell’s mental
RFC wholesale—nor was the ALJ required to do so. See Chapo v. Astrue, 682 F.3d 1285,
1288 (10th Cir. 2012). Further, in explaining the mental RFC determination, the ALJ noted
that the plaintiff admitted “that he is cognitively independent for meals, chores, following
instructions, and interacting with others.” (R. 42-43). Still, acknowledging that the plaintiff
experiences symptoms of depression and anxiety, the ALJ “agree[d] that he is limited to
unskilled work, which is simple, repetitive, and routine, and simple, clear, concise
supervision,” and imposed additional limitations on performing “work requiring a specific
production rate, such as assembly line work or work requiring hourly quotas.” (R. 43).
Thus, the ALJ’s decision shows that he made his own assessment of the mental RFC in
light of the record as a whole, and his RFC findings do not conflict with the alternative jobs
identified at step five.
V.
Conclusion
For the reasons set forth above, the Court finds the ALJ’s conclusion is legally sound
and supported by substantial evidence. Therefore, the decision of the Commissioner
finding the plaintiff not disabled for the relevant period is affirmed.
ORDERED this 26th day of March, 2024.
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