Simon v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER -- The decision of the Commissioner is AFFIRMED. Judgment will be entered accordingly. Signed by Magistrate Judge Shon T. Erwin on 3/30/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MIKKI J. SIMON,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. CIV-16-480-STE

MEMORANDUM OPINION AND ORDER
Plaintiff 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 denying Plaintiff’s
application for disability insurance benefits (DIB) and supplemental security income (SSI)
under the Social Security Act. The Commissioner has answered and filed a transcript of
the administrative record (ECF No. 14) (TR. ____). Both parties to the proceedings have
consented to the exercise of jurisdiction by a United States Magistrate Judge to order the
entry of a final judgment. Upon review of the pleadings, the record, and the parties’
briefs, the Commissioner’s decision is AFFIRMED.
I.

PROCEDURAL HISTORY
Plaintiff filed her applications for DIB and SSI alleging disability beginning October

3, 2011. (TR. 14). The applications were denied on initial consideration and on
reconsideration at the administrative level. At Plaintiff’s request, the Administrative Law
Judge (ALJ) held a de novo hearing on June 19, 2014. (TR. 41-71). Plaintiff appeared

with a non-attorney representative and testified in support of her application. A vocational
expert (VE) also testified at the request of the ALJ. The ALJ issued his decision on
September 17, 2014, finding that Plaintiff was not disabled. (TR. 18-33). The Appeals
Council denied Plaintiff's request for review, and the decision of the ALJ became the final
decision of the Commissioner. (TR. 1-4). This judicial appeal followed.
II.

THE ADMINISTRATIVE DECISION
In addressing Plaintiff’s applications, the ALJ followed the five-step sequential

evaluation process set forth in 20 C.F.R. §§ 404.1520; 416.920. At step one, the ALJ
determined Plaintiff had not engaged in substantial gainful activity from her alleged onset
date. (TR. 20). At step two, the ALJ identified Plaintiff’s severe impairments: major
depressive disorder; generalized anxiety disorder with agoraphobia; post-traumatic stress
disorder (“PTSD”); Takotsubi cardiomyopathy; back pain; methamphetamine abuse (in
remission); and headaches. (TR. 20). At step three, the ALJ found that Plaintiff does not
have a physical or mental impairment or combination of impairments that meets or equals
any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P,
App’x. 1 (TR. 21).
After a thorough discussion of the evidence in the record, the ALJ assessed
Plaintiff’s residual functional capacity (RFC):
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that she is limited to performing simple
tasks with routine supervision; limited to just occasional contact with coworkers and supervisors; would have no work-related contact with the

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general public; and would need to avoid concentrated exposure to fumes,
dust and poorly ventilated areas.
(TR. 24). The ALJ compared Plaintiff’s past relevant work to her RFC and determined she
could not perform any of her past jobs as motor vehicle assembler, sewing machine
operator, trailer assembler or sales clerk/cashier. (TR. 31).
At step five, the ALJ considered the testimony of the VE and determined there
were jobs existing in significant numbers in the national economy that Plaintiff could
perform including Housekeeper/cleaner; Marker; and Laundry folder. (TR. 32). Thus, at
step five of the sequential evaluation, the ALJ determined Plaintiff is not disabled.
III.

ISSUES PRESENTED
In two related propositions (A and C), Plaintiff takes issue with the ALJ’s mental

RFC. The first challenge is based on the ALJ’s alleged error in failing to incorporate his
step two and three findings—that Plaintiff has moderate difficulties in maintaining
concentration, persistence or pace—directly into the RFC. (ECF No. 20:4-5). Additionally,
Plaintiff challenges the ALJ’s failure to specifically discuss written comments on the
telephone application for benefits regarding Plaintiff’s ability to remember and answer
questions. (ECF No. 20:7-8).
Plaintiff also challenges the ALJ’s physical RFC in two related propositions (B and
D). First, Plaintiff contends the ALJ’s failure to “perform a function-by-function
assessment” of her physical limitations at step four constitutes reversible error. (ECF No.
20:5-7). Second, Plaintiff asserts the physical RFC assessment that Plaintiff can perform

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light work is insufficient because no medical opinion specifically refers to her ability to do
light work. (ECF No. 20: 8-9).
In proposition E, Plaintiff contends the ALJ did not sustain her burden of proof at
step five where he identified three jobs Plaintiff could still do despite her impairments.
Plaintiff contends a reasoning level of 2, assigned by the authors of the Dictionary of
Occupational Titles (DOT) to two of the three jobs identified at step five by the VE, is
inconsistent with the ALJ’s conclusion that Plaintiff can do only simple work. (ECF No.
20:9-10).
Finally, in proposition F, Plaintiff challenges the ALJ’s credibility determination as
“unsupported by … substantial evidence.” (ECF No. 20:10-13).
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether

the factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10 th
Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
V.

ANALYSIS
A.

Mental RFC

Plaintiff asserts the ALJ’s findings at steps two and three—that Plaintiff had
moderate difficulties maintaining concentration, persistence, or pace—should have
been incorporated directly into the RFC. (ECF No. 20:4-5). But the law on this issue is

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clearly settled: findings made in consideration of the Paragraph B criteria included in
the Listing of Impairments for mental disorders, in this case Listings 12.04 and 12.06,
are not an RFC determination. See Social Security Ruling (SSR) 96–8p, 1996 WL
374184, at *4 (July 2, 1996) (“The adjudicator must remember that the limitations
identified in the ‘paragraph B’ ... criteria are not an RFC assessment but are used to
rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation
process.”).
At steps two and three of the sequential analysis, the ALJ determines whether
the claimant has a severe impairment (step 2) and whether the impairment meets or
equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (step 3). Here, the
ALJ found at step three of the sequential process of evaluation that Plaintiff had only
a moderate—not marked—limitation of concentration, persistence and pace. (TR. 23).
Listings 12.04, 12.06, paragraph B. “The ALJ’s finding of a moderate limitation in
concentration, persistence, or pace at step three does not necessarily translate to a
work-related functional limitation for the purposes of the RFC assessment.” Vigil v.

Colvin, 805 F.3d 1199, 1203-1204 (10th Cir. 2015) (finding ALJ accounted for
claimant’s moderate mental deficits by limiting him to simple tasks and unskilled work).
In assessing the Paragraph B criteria, the ALJ relied primarily on the consultative
mental status examination of Dr. Parrid Shah, the opinion of whom he gave great
weight:
With regard to concentration, persistence or pace, the claimant has no
more than moderate difficulties. On direct evaluation by Dr. Shah, the

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consultative psychiatric examiner of record, the claimant demonstrated no
deficit in her memory, attention, concentration, ability to follow directions
or cognitive functioning. (Exhibit 4F). While it is reasonable to infer that
poor sleep, chronic pain and depressed mood may cause some interference
in this functional area, the record does not warrant finding a greater degree
of limitation.
(TR. 23).
Relevant to concentration, persistence or pace, Dr. Shah noted Plaintiff was able
to recall three of three objects immediately as well as three of three objects after five
minutes. She was also able to perform serial threes from one to one hundred and count
from twenty to one backwards. (TR. 335).
The Tenth Circuit Court of Appeals held that “moderate difficulty with
concentration, persistence, and pace is encompassed by the limitation of work
involving simple tasks with some detail.” Orso v. Colvin, 658 Fed. App’x. 418, 420 (10th
Cir. Sep. 29, 2016) (citing Vigil , 805 F.3d at 1203).
In this case, the ALJ’s RFC and hypothetical question to the VE included mental
limitations almost identical to those found in Orso: “The individual would be limited to
simple tasks with routine supervision; would be limited to just occasional contact with
coworkers and supervisors; [and] would have no work-related contact with the general
public[.]” (TR. 64). Thus, both the RFC and the hypothetical question to the VE account
for limitations caused by Plaintiff’s mental condition, and remand is not warranted.1

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Plaintiff relies on several older, unpublished cases in support of her challenge to the RFC. But
this Court relies on Vigil, a more recent published case. The Court also finds the recent,
unpublished case, Orso, to be persuasive.

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In her second challenge to the ALJ’s mental RFC determination, Plaintiff contends
the ALJ erred in failing to explicitly mention a third-party statement from L. Faber, an
“employee of the Defendant.” Faber took Plaintiff’s initial disability application by
telephone on August 8, 2012. As Plaintiff observes, Faber “specifically noted on the
application that Plaintiff had difficulty concentrating, answering, and had trouble
remembering.” (ECF No. 20:7). See also TR. 200. Plaintiff cites Social Security Regulation
(SSR) 96-7p for this proposition:
The adjudicator must also consider any observations about the individual
recorded by Social Security Administration (SSA) employees during
interviews, whether in person or by telephone. In instances where the
individual attends an administrative proceeding conducted by the
adjudicator, the adjudicator may also consider his or her own recorded
observations of the individual as part of the overall evaluation of the
credibility of the individual's statements.
SSR 96-7p, 1996 WL 374186 at *5 (July 2, 1996) (emphasis added). See also, 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). The ruling Plaintiff cites addresses evidence an ALJ
should consider when evaluating a claimant’s credibility. But the regulations governing
evidence an ALJ should consider in determining a claimant’s RFC, 20 see C.F.R. §§
404.1545(e), 416.945(e), reference the evidence listed in §§ 404.1529(c) and 416.929(c)
as relevant to the RFC determination as well. Nevertheless, “an ALJ is not required to
discuss every piece of evidence.” Clifton v. Chater , 79 F.3d 1007, 1009–10 (10th Cir.
1996) (citation omitted).
Of course, the record must demonstrate that the ALJ considered all the evidence.
Here, the ALJ stated he had carefully considered “the entire record,” and his discussion

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of the evidence and reasons for his conclusions demonstrate he adequately considered
Plaintiff’s alleged impairments. (TR. 24). “When an ‘ALJ’s discussion of the evidence and
his reasons for his conclusions demonstrate that he adequately considered [a claimant’s]
alleged impairments,’ we take him ‘at his word’ when he ‘indicates he has considered all
the evidence.’” Shockley v. Colvin, 564 F. App’x 935, 937 (10th Cir. 2014) (quoting Wall

v. Astrue, 561 F.3d 1048, 1070 (10th Cir.2009)). Thus, the ALJ’s mental RFC is supported
by substantial evidence in the record. The observation referenced by Plaintiff is not
sufficient to overwhelm the evidence in the record that supports the ALJ’s mental RFC.
B.

Physical RFC

Plaintiff contends the A LJ erred in that he “failed to perform the requisite
function-by-function assessment in accordance with SSR 96-8p.” (ECF No. 20:5).
Without such an assessment, Plaintiff contends, “[i]t is impossible to determine from
[the definition of light work] how the ALJ assessed Plaintiff’s actual ability to walk, sit,
stand, push, and pull.” (ECF No. 20:6).
Social Security Ruling 96–8p provides, “[t]he RFC assessment is a function-byfunction assessment based upon all of the relevant evidence of an individual’s ability
to do work-related activities.” SSR 96–8p, 1996 WL 374184, at *3. The Ruling states
further that an ALJ’s “[i]nitial failure to consider an individual’s ability to perform the
specific work-related functions could be critical to the outcome of a case.” Id.
Therefore, the Ruling directs that “[a]t step 4 of the sequential evaluation process, the
RFC must not be expressed initially in terms of the exertional categories of ‘sedentary,’

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‘light,’ ‘medium,’ ‘heavy,’ and ‘very heavy’ work because the first consideration at this
step is whether the individual can do past relevant work as he or she actually
performed it.” Id.
But in this case, the ALJ found at step four that Plaintiff could not perform any
of her past relevant work. Thus, the absence of a function-by-function analysis could
not have adversely affected the decision at that step.
The ruling also states a function-by-function analysis of the seven strength
demands—sitting, standing, walking, lifting, carrying, pushing and pulling—is
important at step five, when an ALJ applies the Medical–Vocational Guidelines to

determine whether there is other work the claimant could do . See id. at *4. A functionby-function analysis is important when the ALJ applies the guidelines because
otherwise, an ALJ “may … overlook limitations and restrictions that would narrow the
ranges and types of work an individual may be able to do.” Id. Application of the
guidelines without a function-by-function analysis could, therefore, result in an
incorrect decision. Id.
In this case, however, the ALJ did not apply the Medical-Vocational Guidelines
in determining there are other jobs existing in significant numbers in the national
economy that Plaintiff can perform. The ALJ used the guidelines as a framework for
his decision making, but he relied primarily on the testimony of the VE. (TR. 32).
The Tenth Circuit Court of Appeals has held that an ALJ does not err in failing
to perform a function-by-function assessment where the ALJ found the claimant could

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perform the full range of sedentary work, albeit that the ALJ applied the Medical Vocational Guidelines. See Herndon v. Colvin, 767 F.3d 951, 957 (10th Cir. 2014) (ALJ’s
failure to find explicitly that claimant was capable of sitting for six hours during a
regular eight-hour work day was not critical to outcome of case, and claimant did not
demonstrate error).
In this case, the ALJ did not find that Plaintiff could perform the full range of
light work; but the only physical limitation was “the need to avoid concentrated
exposure to fumes, dust and poorly ventilated areas.” (TR. 24). This limitation is not
related to any of the strength demands of light work. Significantly, Plaintiff points to
no evidence—and this Court has found no evidence—supporting a conclusion that
Plaintiff has limitations in any of the seven strength demands that would limit her
ability to perform most light work. Thus, this Court concludes the ALJ’s failure to
perform a function by function analysis of the seven strength areas does not constitute
reversible error. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)
(“Where, as here, we can follow the adjudicator’s reasoning in conducting our review,
and can determine the correct legal standards have been applied, merely technical
omissions in the ALJ’s reasoning do not dictate reversal. In conducting our review, we
should, indeed must, exercise common sense …. [W]e cannot insist on technical
perfection.”).
Plaintiff also challenges the ALJ’s physical RFC, contending it is not supported
by “any medical opinions of record.” (ECF No. 20:8). Plaintiff takes the unusual position

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that the ALJ’s RFC for light work conflicts with the medical opinions of state agency
doctors because those opinions found on initial determination and reconsideration that
“there were no medically determinable physical impairments.” Id.
Plaintiff’s “contention rests on an unduly narrow view of the role of the
administrative factfinder in social security disability proceedings.” Chapo v. Astrue, 682
F.3d 1285, 1288 (10th Cir. 2012). In Chapo, the Tenth Circuit rejected the argument
that the limitations in an ALJ’s mental RFC assessment must always be supported by
a specific medical opinion, noting that “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.” Id. To the contrary, “the ALJ, not a physician, is
charged with determining a claimant’s RFC from the medical record.” Id. (quotation
and alteration omitted); see also 20 C.F.R. §§ 404.1546(c), 416.946(c) (providing ALJ
is responsible for assessing RFC). And the ALJ’s RFC assessment is an administrative,
rather than a medical, determination. See Social Security Ruling (SSR) 96–5p, 1996
WL 374183, at *5 (July 1996) (“The term ‘residual functional capacity assessment’
describes an adjudicator’s finding about the ability of an individual to perform workrelated activities. The assessment is based upon consideration of all relevant evidence
in the case record .... [A] medical source statement must not be equated with the
administrative finding known as the RFC assessment.”). See also Howard v. Barnhart,
379 F.3d 945, 949 (10th Cir. 2004) (it is the duty of the ALJ, not a physician, to review
all the evidence and determine a claimant’s RFC from the medical record).

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Moreover, an ALJ does not commit reversible error by tempering the extremes
of a medical opinion adverse to a claimant for the claimant’s benefit. Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012).
Plaintiff contends, the ALJ should have further developed the record by ordering
“a consultative examination or an opinion from a treating physician as to Plaintiff’s
functional limitations stemming from her ‘severe’ physical impairment.” (ECF No. 20:89). This Court disagrees. Although the ALJ has the duty to develop the record, such a
duty does not permit a claimant, through counsel, to rest on the record and later fault
the ALJ for not performing a more exhaustive investigation. 2 See Branum v. Barnhart,
385 F.3d 1268, 1271–72 (10th Cir. 2004) (concluding the ALJ satisfactorily developed
the record when the claimant’s “counsel did not indicate or suggest to the ALJ that any
medical records were missing from the administrative record, nor did counsel ask for
the ALJ’s assistance in obtaining any additional medical records”). Requiring such a
duty would contravene the principle that the ALJ is not required to act as the claimant’s
advocate to meet his duty to develop the record. See Henrie v. United States Dep’t of

Health & Human Services, 13 F.3d 359, 360–61 (10th Cir. 1993). “An ALJ has the duty
to develop the record by obtaining pertinent, available medical records which come to
his attention during the course of the hearing.” Carter v. Chater , 73 F.3d 1019, 1022
(10th Cir. 1996). In this case, there were no medical opinions missing from the record

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In this case, Plaintiff’s representative asked for and received two additional weeks to submit
recent medical records from a new treating source. (TR. 44). There was no indication, however,
that Plaintiff sought the ALJ’s help in procuring those records.

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to which the ALJ was alerted. The ALJ’s physical RFC was supported by substantial
evidence in the record, and the ALJ had no duty to further develop the record.
C.

Step Five

The ALJ found Plaintiff could perform “simple tasks with routine supervision.”
(TR. 24). Plaintiff contends this finding regarding her RFC is incompatible with jobs
such as Marker and Laundry folder that require level two reasoning: the ability to
“[a]pply commonsense understanding to carry out detailed but uninvolved written or
oral instructions,” and “[d]eal with problems involving a few concrete variables in or
from standardized situations.” See DOT 920.687-126; 369.687-018.
The DOT includes a General Education Development (GED) Scale composed of
three divisions: (1) reasoning development; (2) mathematical development; and (3)
language development. See DOT, Appendix C, Components of the Definition Trailer,
1991 WL 688702. The GED “embraces those aspects of education (formal and
informal) which are required of the worker for satisfactory job performance.” Id.
The Tenth Circuit concluded in at least one case that an RFC for “simple and
routine work tasks” seemed “consistent” with level-two reasoning. Hackett v. Barnhart,
395 F.3d 1168, 1176 (10th Cir. 2005). In this case, the limitation to “simple tasks with
routine supervision” is nearly identical to the limitation in Hackett. Moreover, the ALJ
questioned the VE as to whether her testimony was inconsistent with the information
in the DOT. The VE noted the DOT “does not address specific exposure to coworkers,
supervisors or public” and acknowledged that part of her testimony was based on her

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“experience working with employers and examining job analysis.” (TR. 65). She implied
the rest of her testimony was consistent with information in the DOT. Applying the
principles in Hackett to the factually similar circumstances in this case, the Court
concludes the VE’s testimony was consistent with information in the DOT. 3
D.

Credibility

Plaintiff challenges the ALJ’s credibility analysis on the bases that the ALJ
improperly considered Plaintiff’s failure to stop smoking, improperly considered her
contradictory statements about past substance abuse, and improperly considered her
“demeanor” during the hearing. But a review of the ALJ’s decision demonstrates the
credibility analysis is supported by substantial evidence.
Once an ALJ finds a claimant to have nonexertional impairments, he must take
the next step and assess the claimant’s credibility. See 20 C.F.R. §§ 404.1529; 416.929.
In doing so, he should closely and affirmatively link his findings with substantial
evidence. See Hackett v. Barnhart, 395 F.3d at 1173. If, however, the ALJ sets forth
the evidence he relies upon in evaluating credibility, he “need not make a ‘formalistic
factor-by-factor recitation of the evidence.’” Keyes–Zachary, 695 F.3d at 1167
(quotation omitted). Again, “common sense, not technical perfection, is [the court’s]
guide.” Id.

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Because the ALJ’s finding regarding Plaintiff’s ability to do the jobs of Marker and Laundry folder
is supported by sufficient evidence, the Court need not consider whether the job of Housekeeper,
standing alone, would be sufficient to support the ALJ’s step-five findings.

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In considering Plaintiff’s credibility concerning the severity of her symptoms, the
ALJ noted her physical complaints “are largely unverified by the objective medical
evidence.” (TR. 29). The consultative medical report from Dr. Ronald Schatzman, for
example, listed Plaintiff’s subjective complaints, but on examination, Dr. Schatzman
found no abnormalities and set forth no work-related limitations. (TR. 27; 325-332).
The results of the psychiatric consultative evaluation by Dr. Parrid Shah likewise
set forth no work-related limitations resulting from Plaintiff’s major depression, PTSD
or generalized anxiety. (TR. 27; 333-336). Dr. Shah stated that Plaintiff’s symptoms
would likely improve in the next twelve months. (TR. 30).
Plaintiff was hospitalized after a suicide attempt, but she stabilized quickly and
was released after one week of conservative treatment. Thereafter, Plaintiff’s mental
condition remained stable with medication management only, for which she was seen
every three months. (TR. 29).
The ALJ noted Plaintiff’s complaints of back pain, but found, based on the
medical evidence and Plaintiff’s testimony, that Plaintiff’s back pain is mild and
intermittent in nature, with no radiation of pain and no neurologic or motor deficits.
(TR. 29).
Plaintiff’s cardiac condition, “Takotsubu cardiomyopathy,” is a form of stressrelated cardiomyopathy. 4 (TR. 29; 547). The heart attack occurring in May 2013 was

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“Takotsubo cardiomyopathy mimics acute coronary syndrome and is accompanied by
reversible left ventricular apical ballooning in the absence of angiographically significant
coronary artery stenosis. In Japanese, ‘tako-tsubo’ means ‘fishing pot for trapping

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apparently the result of Plaintiff’s having “huffed” gasoline in an attempt to commit
suicide. (TR. 360-364; 536-601). Ultimately, however, Plaintiff had no evidence of
systolic or diastolic failure. Her left ventricular systolic function was “low normal” on
testing. (TR. 22; 599).
The evidence cited by the ALJ constitutes substantial evidence in support of his
credibility findings. But Plaintiff contends the ALJ improperly considered Plaintiff’s
failure to quit smoking, her previous drug abuse, and her demeanor at the hearing to
evaluate her credibility. (ECF No. 20:10-13). The Court does not read the ALJ’s decision
in this light.
One of the symptoms Plaintiff contends she has is trouble breathing—allegedly
a result of her cardiac condition. The ALJ noted Plaintiff’s admission regarding her
smoking and its probable impact on her ability to breathe. (TR. 26). The ALJ also noted
that “Plaintiff continues to smoke despite her heart problem.” (TR. 29). Other than
these two brief references, the ALJ did not discuss Plaintiff’s failure to quit smoking,
and he did not even suggest that Plaintiff’s continued smoking is an example of
Plaintiff’s failure to comply with prescribed treatment. Thus, the ALJ’s brief references
to Plaintiff’s smoking do not constitute reversible error.

octopus,’ and the left ventricle of a patient diagnosed with this condition resembles that
shape. Takotsubo cardiomyopathy, which is transient and typically precipitated by acute
emotional stress, is also known as ‘stress cardiomyopathy’ or ‘broken-heart syndrome.’”
(Tex. Heart Inst. J. 2007; 34(1): 76–79.).

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Plaintiff also suggests the ALJ pinned his credibility analysis on Plaintiff’s prior
drug use, a practice disapproved by the SSA. Plaintiff cites Social Security Ruling 163p (effective March 28, 2016)5 for this proposition:
Adjudicators must limit their evaluation to the individual’s statements about
his or her symptoms and the evidence in the record that is relevant to the
individual’s impairments. In evaluating an individual’s symptoms, our
adjudicators will not assess an individual’s overall character or truthfulness
in the manner typically used during an adversarial court litigation. The
focus of the evaluation of an individual’s symptoms should not be to
determine whether he or she is a truthful person. Rather, our adjudicators
will focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the individual’s
symptoms and given the adjudicator’s evaluation of the individual’s
symptoms, whether the intensity and persistence of the symptoms limit
the individual’s ability to perform work-related activities[.]
SSR 16-3p at *10.
The ALJ made one brief reference to Plaintiff’s former substance abuse that could
be viewed as impacting his view of Plaintiff’s credibility: [Plaintiff] was quite vague in
answering questions about her past and current substance use, contradicting herself
during her testimony. (TR. 29). The Court notes the ALJ did not have the benefit of SSR
16-3p when he wrote the unfavorable decision. More importantly, however, is the fact
that the ALJ, as demonstrated above, primarily relied on the proper factors in assessing
Plaintiff’s credibility. Thus, at most, the ALJ’s consideration of Plaintiff’s inconsistent
testimony was harmless error. See Fischer–Ross v. Barnhart, 431 F.3d 729, 733–34 (10th
Cir.2005) (recognizing that harmless error analysis is applicable if “no reasonable

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The ruling emphasizes that “subjective symptom evaluation is not an examination of an
individual’s character.” SSR 16-3p, 2016 WL 1119029 at *1 (Mar. 28, 2016).

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administrative factfinder, following the correct analysis, could have resolved the factual
matter in any other way” (quotation omitted)).
CONCLUSION
The decision of the Commissioner is AFFIRMED. Judgment will be entered
accordingly.
ENTERED on March 30, 2017.

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