Bryant v. Commissioner of Social Security

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION 22 of Magistrate Judge Charles B. Goodwin and affirms the decision of the Commissioner. Signed by Honorable Joe Heaton on 1/30/2017. (Attachments: # 1 Attachment 1 - Report and Recommendation)(cla)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTINE BRYANT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

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Case No. CIV-15-1151-HE

REPORT AND RECOMMENDATION
Plaintiff Christine Bryant brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying Plaintiff’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under the Social Security Act, 42
U.S.C. §§ 401-434, 1381-1383f. Chief United States District Judge Joe Heaton has
referred this matter to the undersigned for initial proceedings consistent with 28 U.S.C. §
636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has
answered and filed the administrative record (Doc. No. 10, hereinafter “R. _”). The
parties have briefed their positions, and the case is ready for decision. For the reasons
stated herein, it is recommended that the Commissioner’s decision be affirmed.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her applications for DIB and SSI on September 13,
2012, alleging a disability onset date of August 20, 2011. R. 176-85, 211-12. Following

denial of her applications initially and on reconsideration, a hearing was held before an
Administrative Law Judge (“ALJ”) on March 4, 2014. R. 38-63, 85-86, 111-19. In
addition to Plaintiff, a vocational expert testified at the hearing. See R. 38-61. The ALJ
issued an unfavorable decision on June 30, 2014. R. 15-37.
The Commissioner uses a five-step sequential evaluation process to determine
entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 20, 2011. R. 20. At step two, the
ALJ determined that Plaintiff had the severe impairments of: (i) osteoarthrosis and allied
disorders; and (ii) substance abuse/dependence. R. 20-27. The ALJ also stated that
Plaintiff had “medically determinable mental impairments of affective disorder and
substance addiction disorders” but these impairments were “nonsevere.” R. 27. At step
three, the ALJ found that Plaintiff’s condition did not meet or equal any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
(the “Listings”). R. 27-28.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on
all of her medically determinable impairments. R. 28-32. The ALJ found:
[Plaintiff] has the [RFC] to perform sedentary work . . . except
lift/carry/push/pull no more than 10 pounds occasionally; sit for a total of
less than 6 hours in an 8 hour workday; stand for a total of less than 2 hours
in an 8 hour workday; and walk for a total of less than 2 hours a day; can
perform simple and some complex tasks (functional limits due to physical
rather than mental impairments); avoid gases, dust, pollution and smoke.

2

R. 28.1
At step four, the ALJ found that Plaintiff’s RFC allowed her to perform her past
relevant work as a customer service representative. R. 32. Therefore, the ALJ concluded
that Plaintiff had not been disabled within the meaning of the Social Security Act during
the relevant time period. R. 32.
Plaintiff’s request for review by the Appeals Council was denied. R. 1-4. The
unfavorable determination of the ALJ stands as the Commissioner’s final decision. See 20
C.F.R. §§ 404.981, 416.1481.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole
and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169
(10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003) (internal quotation marks omitted).

“A decision is not based on

substantial evidence if it is overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270
1

“Sedentary work” is defined in the relevant regulations as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are
met.

20 C.F.R. §§ 404.1567(a), 416.967(a).
3

(10th Cir. 2004) (internal quotation marks omitted). The court “meticulously examine[s]
the record as a whole,” including any evidence “that may undercut or detract from the
ALJ’s findings,” “to determine if the substantiality test has been met.” Wall, 561 F.3d at
1052 (internal quotation marks omitted).

While the court considers whether the

Commissioner followed applicable rules of law in weighing particular types of evidence
in disability cases, the court does not reweigh the evidence or substitute its own judgment
for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
On appeal, Plaintiff raises multiple contentions of error, addressed in turn below.
I.

The ALJ’s Assessment of Dr. Mercer’s Opinion
Plaintiff’s primary basis for seeking reversal is the ALJ’s alleged error in assessing

and weighing an opinion of Plaintiff’s treating physician, Mary Kathryn Mercer, DO.
Plaintiff argues that this error rendered the RFC determination unsupported by substantial
evidence. See Pl.’s Br. (Doc. No. 14) at 2-5. The undersigned disagrees.
A. The Relevant Record and the Written Decision
The record reflects that Plaintiff was treated by Dr. Mercer on numerous occasions
between November 2011 and February 2014 for a variety of physical and mental
ailments. See R. 449-548 (Ex. 4F), 648-897 (Ex. 15F). On March 27, 2013, Dr. Mercer
completed a Physical Residual Functional Capacity form (“PRFC”) regarding Plaintiff’s
limitations. R. 591-96 (Ex. 11F). In the PRFC, Dr. Mercer noted Plaintiff’s diagnoses of
depression and arthritis, as well as her alleged impairments of chronic pain and anxiety.
R. 591. With respect to exertional limitations, Dr. Mercer checked boxes indicating that
4

Plaintiff could: occasionally and frequently lift and/or carry less than 10 pounds; stand
and/or walk (with normal breaks) less than 2 hours in an 8-hour workday; sit (with
normal breaks) less than about 6 hours in an 8-hour workday; and was “limited” in her
upper extremities as to pushing and/or pulling. R. 591-92. With respect to postural
limitations, Dr. Mercer opined that Plaintiff could occasionally climb, balance, or stoop
but could never kneel, crouch, or crawl.

R. 592.

Dr. Mercer found no visual or

communicative limitations. R. 593-94. Finally, Dr. Mercer opined that Plaintiff should
“avoid all unlimited exposure” to extreme cold and “avoid even moderate exposure” to
“[f]umes, odors, dusts, gases, poor ventilation, etc.” or to hazards such as machinery and
heights.

R. 594.

Dr. Mercer’s check-the-box opinions are accompanied by no

explanations or citations to evidence even though the form specifically instructed her to
“describe” or “explain” the particular functional limitations that she identified. See R.
592, 594, 595-96.
At step two of his written decision, the ALJ gave a detailed summary of Dr.
Mercer’s treatment records for Plaintiff. R. 26 (citing Ex. 15F). The ALJ also identified
Dr. Mercer as Plaintiff’s treating physician and enumerated Dr. Mercer’s PRFC
diagnoses and specific opinions. R. 24 (citing Ex. 11F). In his RFC determination, the
ALJ stated: “Little weight is given to Dr. Mercer’s residual functional capacity
assessment at Exhibit 11F, as it simpl[y] is not supported by other objective evidence in
the record.” R. 31.

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B. The Treating Physician Rule
By regulation, a treating physician’s medical opinion generally is given “more
weight” than that of a nontreating source.

20 C.F.R. §§ 404.1527(a)(2), (c)(2),

416.927(a)(2), (c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). Under
Tenth Circuit authority, the evaluation of a treating physician’s opinion follows a twostep procedure. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). First, the
ALJ must determine whether the treating physician’s opinion should be given
“controlling weight” on the matter to which it relates.

See id.; 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). The medical opinion of a treating physician must be
given controlling weight if it is both well-supported by medically acceptable clinical or
laboratory diagnostic techniques and not inconsistent with other substantial evidence in
the record. Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2
(July 2, 1996)); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Second, if the ALJ has
determined that the medical opinion of a treating physician is not entitled to controlling
weight, the ALJ must determine what lesser weight should be afforded the opinion. See
Watkins, 350 F.3d at 1300-01; Langley, 373 F.3d at 1119. A treating physician opinion
not afforded controlling weight is still entitled to deference. See Watkins, 350 F.3d at
1300. The determination of how much deference to afford a treating physician opinion
should be made in view of a prescribed set of regulatory factors, Watkins, 350 F.3d at
1301; 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6), but “[t]he ALJ is not required
to mechanically apply all of these factors in a given case.” Ringgold v. Colvin, 644 F.
App’x 841, 843 (10th Cir. 2016). Finally, if an ALJ rejects a treating source opinion
6

completely, he or she “must then give specific, legitimate reasons for doing so.” Watkins,
350 F.3d at 1301 (internal quotation marks omitted).
C. Discussion
Plaintiff objects that the ALJ’s assignment of “little weight” to Dr. Mercer’s PRFC
amounted to a “complete[]” “reject[ion]” of that opinion, for which the ALJ was
required—but failed—to provide “specific, legitimate reasons.” 2 Pl.’s Br. at 2-5 (internal
quotation marks omitted); see Watkins, 350 F.3d at 1301 (internal quotation marks
omitted). The Commissioner responds that the ALJ’s stated reason for assigning little
weight to the PRFC—a lack of support in the remainder of the record—is supported by
substantial evidence.

See Def.’s Br. (Doc. No. 19) at 8-9.

Plaintiff replies that

acceptance of the Commissioner’s rationale would require the Court to improperly rely
upon explanations not provided by the ALJ and thereby “create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s
decision itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007); see Pl.’s
Reply (Doc. No. 21) at 4.
The undersigned need not consider the Commissioner’s proffered basis for
upholding the ALJ’s decision, however. As outlined below, Plaintiff fails to specify—or
establish—any physical functional limitation noted in Dr. Mercer’s PRFC that the ALJ
improperly omitted from the RFC determination. See Pl.’s Br. at 2-5; R. 28.

Plaintiff raises no objection to the ALJ’s consideration of Dr. Mercer’s treatment
records or of any opinions other than those contained in the PRFC.
2

7

First, each physical limitation that was included in the RFC determination by the
ALJ comports with an analogous limitation found by Dr. Mercer in the PRFC. As noted
above, the ALJ determined that Plaintiff retained the ability to:
 “lift/carry/push/pull no more than 10 pounds occasionally,”
o which is more restrictive than Dr. Mercer’s opinion that Plaintiff could
occasionally and frequently lift and/or carry less than 10 pounds and was
“limited” in her upper extremities as to pushing and/or pulling;
 “sit for a total of less than 6 hours in an 8 hour workday,”
o which is consistent with Dr. Mercer’s opinion that Plaintiff could sit for at a
total of less than about 6 hours in an 8-hour workday with normal breaks;
 “stand for a total of less than 2 hours in an 8 hour workday,”
o which is consistent with Dr. Mercer’s opinion that Plaintiff could stand and/or
walk for less than 2 hours in an 8-hour workday with normal breaks;
 “walk for a total of less than 2 hours a day,”
o which is consistent with Dr. Mercer’s opinion that Plaintiff could stand and/or
walk for less than 2 hours in an 8-hour workday with normal breaks; and
 “avoid gases, dust, pollution and smoke,”
o which is consistent with Dr. Mercer’s opinion that Plaintiff must “avoid even
moderate exposure” to “[f]umes, odors, dusts, gases, poor ventilation, etc.”
Compare R. 28, with R. 591-92, 594.
Thus, the relevant physical limitations adopted by the ALJ in the RFC
determination were either consistent with, or more restrictive than, those specified by Dr.
Mercer in the allegedly “rejected” PRFC.

The ALJ therefore did not reject those

limitations, and his failure to supply the “specific, legitimate reasons” required for such a
rejection does not violate the treating physician rule or undermine the ALJ’s step-four
determinations. See Watkins, 350 F.3d at 1301; R. 28; cf. Howard v. Barnhart, 379 F.3d
8

945, 947 (10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence
unfavorably in order to determine a claimant’s RFC, the need for express analysis is
weakened.”). And because the specific limitations Dr. Mercer assigned to Plaintiff in the
PRFC “were not inconsistent with the limitations the ALJ placed in [Plaintiff’s] RFC,”
“[a]ny error in failing to specify the weight given to the opinion was harmless.” KeyesZachary v. Astrue, 695 F.3d 1156, 1165 (10th Cir. 2012).
Second, as for the remaining limitations that appeared in Dr. Mercer’s PRFC but
were omitted from the RFC determination—namely, that Plaintiff could only
occasionally climb, balance, or stoop; could never kneel, crouch, or crawl; must “avoid
all unlimited exposure” to extreme cold; and must “avoid even moderate exposure” to
hazards such as machinery and heights (R. 592, 594)—any error in failing to provide a
“specific, legitimate reason” for rejecting those limitations is likewise harmless because
there is no discrepancy between any of those limitations and the requirements of the job
to which the ALJ found Plaintiff was able to return. See R. 32, 58-59. The ALJ found
that Plaintiff could return to her sedentary, skilled job as a customer service
representative, the specifications for which are set forth in the Dictionary of
Occupational Titles (“DOT”) (4th rev. ed. 1991). R. 32, 58-59; see DOT 241.367-014
(Customer Complaint Clerk). The relevant DOT listing specifies that the occupation in
question requires no climbing, balancing, stooping, kneeling, crouching, crawling,
exposure to extreme cold, or exposure to moving mechanical parts or high exposed
places. See DOT 241.367-014 (finding these activities and conditions “Not Present”).
Because there was no inconsistency between the limitations outlined in the PRFC and
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Plaintiff being able to perform the job identified by the ALJ, any error by the ALJ in
“rejecting” or not explaining his weighing of these opinions was harmless and did not
undermine the ALJ’s step-four determination. See Mays v. Colvin, 739 F.3d 569, 578-79
(10th Cir. 2014) (“[A]n ALJ’s failure to weigh a medical opinion involves harmless error
if there is no inconsistency between the opinion and the ALJ’s assessment of residual
functional capacity.”); Lane v. Colvin, 643 F. App’x 766, 768-70 (10th Cir. 2016)
(holding that ALJ’s failure to include a physician’s limitation in the claimant’s RFC was
harmless error “because the capacity required to do the jobs identified by the ALJ is not
contrary to [the physician’s] limitations”); cf. Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012) (“[T]here 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.”); Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (noting that ALJ must
discuss rejected evidence if the evidence is “significantly probative”).
As outlined above, each limitation in Dr. Mercer’s PRFC was either adopted by
the ALJ or was inapplicable to the job identified for Plaintiff by the ALJ. “Giving greater
weight to” Dr. Mercer’s opinion “would not have helped her.” Keyes-Zachary, 695 F.3d
at 1163. Plaintiff therefore has not shown any reversible error or lack of substantial
evidence in the ALJ’s consideration of the cited opinions in formulating Plaintiff’s RFC
or in finding that Plaintiff could return to her past relevant work.

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“The Nonsevere Errors”

II.

Plaintiff next sets forth a disjointed list of overlapping claims of error, developed
to varying degrees. See Pl.’s Br. at 5-12. Although the undersigned addresses those
arguments directly raised,
“perfunctory complaints fail to frame and develop an issue sufficient to
invoke [judicial] review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th
Cir. 1994). This Court cannot address contentions for which a claimant
fails to develop the factual and legal bases for his arguments. See Threet v.
Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (declining to speculate on
claimant’s behalf when argument on an issue is “insufficiently developed”).
On judicial review, “it is not our role to shore up [Plaintiff’s] argument for
him.” Chrismon v. Colvin, 531 F. App’x 893, 896 (10th Cir. 2013)
(citation omitted).
Woods v. Colvin, No. CIV-13-763-HE, 2014 WL 2801301, at *2 (W.D. Okla. May 28,
2014) (R. & R.) (alterations in original), adopted, 2014 WL 2801304 (W.D. Okla. June
19, 2014).
A. Plaintiff’s Gastrointestinal Condition
Plaintiff argues that the ALJ’s failure to specifically find her “gastrointestinal
condition” to be a medically determinable impairment was “a huge miss” in light of the
evidence in the record. Pl.’s Br. at 5-6.
The record reflects that Plaintiff received significant treatment for gastrointestinal
and gynecological issues during the relevant period, including: total hysterectomy and
bilateral oophorectomy with excision of endometrial mass and abdominal wall repair
(December 2011); abdominal pain followed by small bowel resection (January 2012);
and incisional hernia repair with adhesion removal (June 2012).

See R. 303-425.

Following these procedures, Plaintiff at times sought treatment for pain in her pelvis,
11

back, or legs, as well as constipation. See, e.g. R. 431-48, 458-59, 549, 597-600. In
November 2012, Plaintiff had a colonoscopy that showed internal nonbleeding
hemorrhoids; afterwards, she underwent three hemorrhoidectomy banding procedures. R.
563-67, 580-88.
Even assuming that the ALJ erred in failing to find Plaintiff’s “gastrointestinal
condition” to be a medically determinable impairment,3 however, the Tenth Circuit has
stated that “a failure to find an impairment medically determinable is essentially a stepfour error,” which can “be obviated if the ALJ considered the non-medically
determinable impairment in assessing the RFC.” Ray v. Colvin, 657 F. App’x 733, 734
(10th Cir. 2016) (citing Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013)). Here, the
written decision reflects that the ALJ considered evidence and testimony regarding
Plaintiff’s gastrointestinal issues in assessing her RFC. See, e.g., R. 21, 22, 23, 24-26, 28,
29-30; cf. Bradley v. Colvin, 643 F. App’x 674, 676 (10th Cir. 2016) (upholding ALJ’s
consideration of certain impairments in assessing claimant’s RFC where ALJ discussed
the impairments “in detail” at step two and stated that “he took into account ‘the entire
record’ and ‘all symptoms’ in determining” the RFC).

The ALJ’s discussion of

Plaintiff’s gastrointestinal condition therefore “satisfied the ALJ’s obligation at step four”
with respect to that condition. Wells, 727 F.3d at 1069.
In grouping together all of her “gastrointestinal issues,” Plaintiff does not articulate the
precise condition she contends should have been found to be a medically determinable
impairment or impairments. Pl.’s Br. at 5, 6. Nor does Plaintiff “explain how this socalled impairment satisfied the requirements of 20 C.F.R. §§ 404.1509, 416.909.”
Brewer v. Colvin, No. CIV-13-420-R, 2014 WL 1612652, at *6 (W.D. Okla. Apr. 22,
2014); see also 20 C.F.R. §§ 404.1508, 416.908.
3

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Further, Plaintiff’s unexplained reference to the “significance” of Plaintiff’s
testimony regarding her continuing bowel issues fails to demonstrate that the ALJ
improperly omitted any functional limitation associated with such issues. Pl.’s Br. at 6.
Plaintiff did testify regarding her stomach pain, constipation, and bowel issues, R. 48, 51,
54-55, 56, and the ALJ discussed that testimony in the written decision, R. 29-30. The
ALJ, however, expressly found that Plaintiff’s statements “concerning the intensity,
persistence and limiting effects of” her symptoms and her inability to work were not
entirely credible for multiple reasons.

R. 29-31.

Plaintiff does not challenge that

credibility determination in this appeal.
For all of these reasons, any error in the ALJ’s consideration of Plaintiff’s
gastrointestinal condition is harmless and does not undermine the ALJ’s RFC
determination. See Ray, 657 F. App’x at 734-35.
B. Plaintiff’s Obesity
Plaintiff contends on appeal that the ALJ’s analysis of Plaintiff’s obesity was
inadequate. See Pl.’s Br. at 6. But Plaintiff did not “testify that [her] weight contributed
to [her] inability to engage in activities in any way”; nor does Plaintiff challenge the
ALJ’s failure to find that her obesity was a medically determinable impairment. Briggs v.
Astrue, 221 F. App’x 767, 771 (10th Cir. 2007) (internal quotation marks omitted); see R.
46-57. Moreover, Plaintiff points to no omitted functional limitation that was necessary
in light of her obesity, cites no evidence of her obesity’s impact, and “has not shown that
her obesity alone, or in combination with . . . impairments, resulted in any further
limitations” or precluded her from performing sedentary work. Smith v. Colvin, 625 F.
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App’x 896, 899 (10th Cir. 2015) (citing SSR 02-1p, 2002 WL 34686281 (Sept. 12,
2002)); see also Callicoatt v. Astrue, 296 F. App’x 700, 702 (10th Cir. 2008) (rejecting
challenge to ALJ’s failure to consider claimant’s obesity where claimant pointed to no
evidence or testimony “showing that her obesity exacerbated her other impairments”);
Woods, 2014 WL 2801301, at *5 (rejecting claimant’s challenge to ALJ’s consideration
of obesity where claimant “fail[ed] to state what ‘sufficient limitations’ the ALJ should
have included”).
In the written decision, the ALJ relied upon and specifically discussed evidence
reflecting Plaintiff’s obesity. See, e.g., R. 21, 22, 24, 25, 26. Having failed to raise a
challenge to the ALJ’s discussion that would be meaningful under the authorities noted
above, Plaintiff’s argument does no more than complain that the ALJ should have been
“required to note the absence of any evidence that [Plaintiff’s] obesity resulted in
additional functional limitations or exacerbated any other impairments”—a proposition
that has been rejected by the Tenth Circuit. See Smith, 625 F. App’x at 899. Plaintiff has
not shown that the ALJ erred in considering Plaintiff’s obesity.
C. Plaintiff’s Substance Addiction
Plaintiff next objects that the ALJ inconsistently found at step two that Plaintiff’s
“substance abuse/dependence” is a severe impairment and that her “substance addiction
disorders” are nonsevere. Compare R. 20, with R. 27. According to Plaintiff, this
discrepancy impermissibly requires the Court “to reweigh the evidence to determine the
severity of substance addiction.” Pl.’s Br. at 6.

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The cited statements are facially inconsistent. But even upon interpreting this
inconsistency in the manner most adverse to Plaintiff—i.e., accepting that the ALJ at step
two found that Plaintiff’s substance addiction was a nonsevere impairment—Plaintiff
fails to explain how this finding was a prejudicial error. Despite the inconsistent labels,
the ALJ discussed in detail the evidence and testimony regarding Plaintiff’s substance
addiction impairment, as well as his assessment thereof, at both step two and in
determining the RFC. See R. 20-21, 22, 23, 24, 25, 26, 29, 31. Plaintiff objects to the
severe/nonsevere inconsistency but does not directly challenge the substance of the
ALJ’s determination with respect to her addiction or cite evidence to demonstrate that her
addiction prevented her from working. See Pl.’s Br. at 6; cf. Harris v. Astrue, 496 F.
App’x 816, 819 n.1 (10th Cir. 2012) (“The burden to show prejudicial error on appeal
rests with [the claimant].” (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009))).
As a result, Plaintiff does not show that any finding that her substance addiction
was a nonsevere impairment actually affected the disability determination. “[A]n error in
determining an impairment’s severity at step two . . . is not reversible if the ALJ proceeds
further to evaluate other impairments.” Ray, 657 F. App’x at 734 (citing Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016)); cf. Keyes-Zachary, 695 F.3d at 1166
(“Where . . . we can follow the adjudicator’s reasoning in conducting our review, and can
determine that correct legal standards have been applied, merely technical omissions in
the ALJ’s reasoning do not dictate reversal.”). Because the ALJ discussed his assessment
of Plaintiff’s substance addiction impairment both at step two and in determining the

15

RFC, and Plaintiff has not shown that the ALJ’s RFC determination erroneously omitted
any limitation related to substance addiction, any error at step two was not prejudicial.
In other words, Plaintiff has not demonstrated that the inconsistency in the ALJ’s
description of his step-two finding undermines the disability decision or requires the
Court to improperly reweigh evidence for its review. The ALJ’s step-two inconsistency
is harmless in light of the ALJ’s subsequent discussion and therefore does not require
reversal. See Keyes-Zachary, 695 F.3d at 1166.
D. Plaintiff’s Mental Impairment
Plaintiff next argues that the ALJ erred in his consideration of Plaintiff’s mental
impairment of affective disorder.
i. The ALJ’s Step-Two Decision and RFC Determination
Plaintiff argues that the ALJ erred at step two in finding Plaintiff’s affective
disorder to be a nonsevere impairment. See Pl.’s Br. at 7, 8-10, 11. Plaintiff additionally
argues that the ALJ erred by omitting any limitations from the RFC determination based
upon Plaintiff’s mental impairment.4 See Pl.’s Br. at 7, 9, 10-11.
As noted above, “an error in determining an impairment’s severity at step two . . .
is not reversible” when “the ALJ proceeds further to evaluate other impairments.” Ray,
657 F. App’x at 734. Plaintiff argues that the ALJ’s error here was not harmless because
the ALJ failed to consider Plaintiff’s mental impairment in reaching the RFC. See Pl.’s
Although the ALJ specified that he was limiting Plaintiff to “simple and some complex
tasks” “due to physical rather than mental impairments,” R. 28, the Tenth Circuit has
noted that such a limitation “can adequately account for a claimant’s mental impairments,
depending on their nature.” Richards v. Colvin, 640 F. App’x 786, 790 (10th Cir. 2016);
accord Beasley v. Colvin, 520 F. App’x 748, 755 (10th Cir. 2013).
4

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Br. at 8-9. This argument is entirely refuted by the text of the written decision, in which
the ALJ specifically considered evidence and testimony regarding Plaintiff’s mental
condition when analyzing Plaintiff’s RFC. See R. 29-30, 30-31 (discussing Plaintiff’s
testimony and statements as to her counseling, concentration, and handling of stress and
changes), 30 (discussing Plaintiff’s mother’s statements as to Plaintiff’s functional
abilities and handling of stress), 31 (discussing consulting psychologist Dr. Stephanie
Crall’s opinions as to Plaintiff’s concentration, mood, and affect).
Plaintiff does offer specific criticism of the ALJ’s step-two analysis. In explaining
his step-two determination, the ALJ discussed each of the “Paragraph B” criteria in detail
and cited evidence supporting his finding of only “mild limitation[s]” in three functional
areas and no episodes of decompensation, which in turn supported his finding that
Plaintiff’s mental impairment was nonsevere.

See R. 27 (citing 20 C.F.R. §

404.1520a(d)(1) (“If we rate the degree of your limitation in the first three functional
areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that
your impairment(s) is not severe . . . .”); id. § 416.920a(d)(1) (same)); see also 20 C.F.R.
pt. 404, subpart P app. 1, § 12.00C (defining the four “Paragraph B” criteria: activities of
daily living; social functioning; concentration, persistence, or pace; and episodes of
decompensation). As to these findings, Plaintiff asserts:
[The ALJ’s] mental health reasoning was that, wait again, there was
no reasoning. See AR 27. While he listed his part B analysis there was no
reasoning as to why it was a nonsevere impairment. He didn’t even
mention what doctor’s in the mental health area should receive any weight,
but his mild part B findings lined up with the agency doctors. See AR 27,
68.

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....
The ALJ lists a relative few Activities of Daily Living (ADL’s), as
justification for his “mild” finding on mental health. AR 27. That is not
enough. The problem also lies within the fact that the ALJ failed to list
anxiety attacks as one of [Plaintiff’s] ADL’s. They are completely
overlooked. What about how her pain interferes with her daily activities?
....
Even worse, the ALJ listed that she was in continuing counseling at
COPE and was failing at that as well. AR 25. All of these signs and the
ALJ still finds her mental health nonsevere.
Pl.’s Br. at 7, 8, 10.
This criticism is not sufficient to establish that the ALJ’s step-two finding of
nonseverity was based on legal error or unsupported by substantial evidence, much less
that the same would be true of the ALJ’s subsequent finding of no mental limitations in
the RFC. In the above-quoted portion of her brief, Plaintiff cites to (i) the “Paragraph B”
page of the ALJ’s written decision, R. 27; (ii) a single page of the explanation that
accompanied the state agency’s denial of benefits, in which a consulting psychologist
likewise found three areas of mild limitation and no episodes of decompensation, R. 68;
and (iii) a page of the written decision where the ALJ discussed treatment records from
Plaintiff’s counseling at COPE, Inc., R. 25. See also R. 68-69, 285-99, 621-43. Plaintiff
does not provide citation to record evidence of the allegedly “overlooked” anxiety attacks
and medical evidence or an explanation for the propositions that anxiety attacks should
be “list[ed] as one of [Plaintiff’s] ADLs” and that Plaintiff’s “failing” at counseling
rendered the ALJ’s nonseverity finding erroneous or unsupported. Pl.’s Br. at 8, 10.
And, as to “[w]hat about how her pain interferes with her daily activities,” Plaintiff does
not provide the Court with her preferred answer to her open-ended question and does not
18

challenge the ALJ’s finding that Plaintiff’s complaints regarding her symptoms,
including pain, were not entirely credible. See R. 28-31.
Plaintiff’s record citations and conclusory contentions “lack[] the specificity
required to support [her] argument” and do not demonstrate that Plaintiff’s mental
impairment “significantly limits” her “mental ability to do basic work activities.” See
Pl.’s Br. at 8; 20 C.F.R. §§ 404.1520(c), 416.920(c); Brown v. Colvin, No. CIV-12-1272HE, 2014 WL 903174, at *5 (W.D. Okla. Mar. 7, 2014) (citing Effinger v. Callahan, No.
97-7001, 1997 WL 446724, at *2 (10th Cir. Aug. 6, 1997) (noting that the court “will not
comb through the record where counsel has not provided specific references tied to an
argument”)). Because Plaintiff has not shown that the omission of mental limitations
from the RFC determination was erroneous or not supported by substantial evidence,
neither her assertion of error at step two nor her challenge to the RFC determination
supports reversal.
ii.

Dr. Haissam Al-Khouri and Dr. Adonis Al-Botros

Plaintiff asserts that the ALJ erred in failing to identify the weight assigned to the
opinions of “treating psychiatrists” Dr. Al-Khouri and Dr. Al-Botros and to provide
specific, legitimate reasons for implicitly rejecting their opinions. See Pl.’s Br. at 5, 7.
As noted by the Commissioner, however, the record does not reflect that these doctors
were “treating” psychiatrists as that term is defined in the applicable regulations. See 20
C.F.R. §§ 404.1502 (defining “treating source” as one who has or had “an ongoing
treatment relationship” with the claimant), 416.902 (same); Def.’s Br. at 9.

19

Plaintiff saw Dr. Al-Khouri only one time, on February 11, 2013. See R. 577-79
(Ex. 9F). Plaintiff saw Dr. Al-Botros only twice, on December 17, 2013, and on January
14, 2014. See R. 644-47 (Ex. 14F). Therefore the record does not plainly reflect an
“ongoing” treatment relationship with either of these psychiatrists, and Plaintiff offers no
support for labeling them as such. See Pl.’s Br. at 5, 7; cf. 20 C.F.R. §§ 404.1502 (“We
will not consider an acceptable medical source to be your treating source if your
relationship with the source is . . . based . . . solely on your need to obtain a report in
support of your claim for disability.”), 416.902 (same); Doyal, 331 F.3d at 764 (rejecting
argument that ALJ was required to give a physician’s opinion controlling weight, or to
provide specific reasons for not giving it controlling weight, when the claimant had seen
the physician only twice in seven years and “[t]e ALJ could reasonably have concluded
that [the physician’s] report fulfilled no purpose other than to support a claim of
disability”).
Although Dr. Al-Khouri and Dr. Al-Botros have not been shown to be treating
sources, the ALJ was still required to consider their opinions as issued by acceptable
medical sources and, if he rejected these opinions, to give “‘specific legitimate reasons’”
for doing so. Chapo, 682 F.3d at 1291 (quoting Doyal, 331 F.3d at 764). Here, the ALJ
discussed the two psychiatrists’ opinions in detail. See R. 24 (citing Ex. 9F), 25 (citing
Ex. 14F). The ALJ also specifically stated that he “considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927.” R. 28.
Plaintiff objects that the ALJ “rejected” these psychiatrists’ diagnoses of mental
health conditions (i.e., depression (Drs. Al-Khouri and Al-Botros) and anxiety (Dr. Al20

Khouri)), as well as Dr. Al-Khouri’s assessment of a Global Assessment of Functioning
(“GAF”) score of 45, and instead “tacit[ly] sid[ed] with” unidentified “Agency doctors.”
Pl.’s Br. at 7; see R. 577-78, 645, 647. With respect to the diagnosis of depression, the
ALJ expressly found that Plaintiff had the medically determinable impairment of
affective disorder and considered the “mild” functional limitations caused by that mental
impairment in evaluating the RFC. See R. 27, 29-31.5 With respect to the diagnosis of
generalized anxiety disorder, Plaintiff points to no evidence—beyond Dr. Al-Khouri’s
isolated diagnosis—to support the propositions that Plaintiff’s anxiety was a medically
determinable impairment, that this impairment was severe in nature and “should have
been part of her RFC,” or that the omission of any (unidentified) functional limitations
resulted in an RFC unsupported by substantial evidence. See Pl.’s Br. at 5, 7, 10-11;
Walters v. Colvin, 604 F. App’x 643, 648 (10th Cir. 2015) (noting that merely having a
condition is not determinative of a disability; rather, the condition must alone or in
combination render the claimant unable to work); Lankford v. Colvin, 612 F. App’x 496,
499 (10th Cir. 2015) (noting that “fleeting references” to a claimant’s anxiety, including
one doctor’s note “diagnosing anxiety, apparently based on [the claimant’s] own report of
feeling stress and anxiety,” were insufficient “to establish a medically determinable
impairment”); 20 C.F.R. §§ 404.1508, .1509, 416.908, .909; cf. SSR 96-8p, 1996 WL
“Affective disorder” refers to mental disorders characterized by a mood disturbance,
which include depression. See 20 C.F.R. pt. 404, subpart P app. 1, § 12.04; Stedman’s
Medical Dictionary 567, 569 (28th ed. 2006). In arguing that her mental impairment was
severe in nature, Plaintiff cites Listing 12.04, but she does not challenge the ALJ’s
determination that Plaintiff’s mental impairments did not meet or equal Listing 12.04.
See Pl.’s Br. at 11; R. 27-28.
5

21

374184, at *1 (July 2, 1996) (“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.”).
Nor does Plaintiff point to evidence or testimony showing that an impairment of anxiety
caused any functional limitations not addressed in the analysis of her affective disorder.
Regarding Dr. Al-Khouri’s assignment of a GAF score of 45, R. 578, Plaintiff
likewise has not shown an improper rejection by the ALJ. The ALJ expressly considered
the score in the written decision. See R. 24.6 And a single low GAF score does not,
“standing alone,” “evidence an impairment seriously interfering with claimant’s ability to
work.” Lopez v. Barnhart, 78 F. App’x 675, 678 (10th Cir. 2003). Dr. Al-Khouri’s
opinion as a whole “did not indicate that [Plaintiff] could not work”: rather, he issued a
largely normal check-the-box mental status examination. Id.; see R. 577 (Dr. Al-Khouri
opining that Plaintiff’s thought process, associations, orientation, and memory were
within normal limits, with average judgment/insight, logical thoughts, and coherent
associations). This psychiatrist’s assessment of a GAF score of 45 “does not undermine,
nor is it ‘significantly probative’ evidence in opposition to, the ALJ’s ultimate
GAF scores represent “a clinician’s judgment of the individual’s overall level of
functioning” at a given time. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders 32 (4th rev. ed. 2000) [hereinafter DSM]. The scores are arranged
on a 100-point scale, with a score between 41 and 50 indicating “serious symptoms” or
“any serious impairment in social, occupational, or school functioning.” Id. “The most
recent edition of the DSM omits the GAF scale ‘for several reasons, including its
conceptual lack of clarity . . . and questionable psychometrics in routine practice.’”
Richards, 640 F. App’x at 791 (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013)).
6

22

conclusions concerning the seriousness of claimant’s mental status or ability to work.”
Lopez, 78 F. App’x at 678 (quoting Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235,
1239 (10th Cir. 2001)) (discussing a GAF score assessment of 40); accord Lee v.
Barnhart, 117 F. App’x 674, 678 (10th Cir. 2004) (noting that while a GAF score of 50
or less suggests “an inability to keep a job,” the claimant’s impairment “might lie solely
within the social, rather than the occupational, sphere”); cf. Butler v. Astrue, 412 F.
App’x 144, 146-47 (10th Cir. 2011) (“[B]ecause the GAF scores at issue were not linked
to any work-related limitations, they are not particularly helpful.”).
In sum, the ALJ sufficiently and appropriately considered these nontreating
psychiatrists’ opinions, and Plaintiff has not shown that reversal is required.
iii.

Dr. Stephanie Crall

Plaintiff next asserts that the ALJ “did not seem to care that” consulting
psychologist Dr. Crall diagnosed Plaintiff with depression and that Dr. Crall’s opinion
“opposed the ALJ’s finding of nonseverity for mental health” such that the ALJ “had to
provide specific, legitimate reasons for rejecting her opinion or it was error.” Pl.’s Br. at
5, 7-8 (citing Chapo, 682 F.3d at 1291).
Dr. Crall examined Plaintiff one time for purposes of her disability benefits
applications. See R. 556-62 (Ex. 6F). Dr. Crall opined:
[Plaintiff’s] ability to engage in work-related mental activities, such as
sustaining attention, understanding, and remembering and to persist at such
activities was likely adequate for simple and some complex tasks. In the
opinion of this evaluator, functional limitations were more likely due to
physical rather than to mental impairments.
R. 559.
23

The ALJ discussed Dr. Crall’s evaluation in detail, including her diagnoses of
depression and cannabis abuse. See R. 22-23 (citing Ex. 6F), 559. Plaintiff offers no
support for the suggestion that the opinion of Dr. Crall as quoted above impels a finding
of a severe mental impairment, such that the ALJ’s nonseverity finding “opposed” it. See
R. 27. See generally 20 C.F.R. §§ 404.1520(c), .1521, 416.920(c), .921; Walters, 604 F.
App’x at 648. Nor does Plaintiff offer support for the suggestion that this opinion by Dr.
Crall impels the inclusion of a limitation in the RFC that was omitted by the ALJ.
Although the ALJ did not expressly assign a weight to Dr. Crall’s opinion, the ALJ
nearly verbatim adopted that opinion, finding that Plaintiff retained the ability to
“perform simple and some complex tasks (functional limits due to physical rather than
mental impairments).” R. 28.
Accordingly, Plaintiff has not shown that the ALJ actually rejected any opinion of
Dr. Crall’s, and thus Plaintiff has not shown that the ALJ was required to provide any
specific, legitimate reason for doing so. Any error in the ALJ’s failure to expressly
assign weight to this opinion is therefore harmless. See Keyes-Zachary, 695 F.3d at
1165; Howard, 379 F.3d at 947.
iv.

Summary

For all of these reasons, Plaintiff has not shown that the ALJ’s evaluation of her
mental impairments or the ALJ’s RFC determination is the product of legal error or is
unsupported by substantial evidence.

24

III.

The Cumulative Effect of Plaintiff’s Impairments
Finally, Plaintiff argues that “the ALJ’s decision does not indicate that he

considered the combined effect of [Plaintiff’s] impairments” at step two, as required by
20 C.F.R. §§ 404.1523 and 416.923. Pl.’s Br. at 11. As explanation for this contention,
Plaintiff merely states, “Simply, [the ALJ] did not or this Court would have seen
evidence of same in his opinion.” Id.
To the contrary, the ALJ specifically explained in his written decision that at step
two he considered Plaintiff’s impairments both separately and in combination. See, e.g.,
R. 19 (ALJ stating that he “must determine whether the claimant has a medically
determinable impairment that is ‘severe’ or a combination of impairments that is
‘severe’” at step two), 27 (considering Plaintiff mental impairments “singly and in
combination” at step two). Plaintiff offers no reason to find otherwise beyond her
dissatisfaction with the result. Cf. Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir.
1988) (rejecting claimant’s argument that ALJ did not consider combined effect of
impairments when ALJ addressed “various impairments” and appellate court found
“nothing to suggest they were not properly considered”); Wall, 561 F.3d at 1070 (“Where
. . . the ALJ indicates he has considered all the evidence our practice is to take the ALJ at
his word.” (alteration and internal quotation marks omitted)).
RECOMMENDATION
For the reasons stated herein, the undersigned recommends that the decision of the
Commissioner be affirmed.

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NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file written objections to this Report and
Recommendation in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such
objections must be filed with the Clerk of this Court by January 19, 2017. The parties
further are advised that failure to timely object to this Report and Recommendation waives
the right to appellate review of the factual and legal issues addressed herein. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this case.
ENTERED this 5th day of January, 2017.

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