Surles v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge AFFIRMS the Commissioners decision. Signed by Magistrate Judge Shon T. Erwin on 2/23/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHIRLEY LAHOMA SURLES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.1

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Case No. CIV-16-522-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
applications for supplemental security income and disability insurance benefits under the
Social Security Act. The Commissioner has answered and filed a transcript of the
administrative record (hereinafter TR. ____). The parties have consented to jurisdiction
over this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to 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).
1

I.

PROCEDURAL BACKGROUND
Plaintiff’s applications for supplemental security income and disability insurance

was denied initially and on reconsideration. Following a hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 23-33). The Appeals Council denied
Plaintiff’s request for review. (TR. 1-3). Thus, the decision of the ALJ became the final
decision of the Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since March 1, 2011, the alleged disability onset date. (TR.
25). At step two, the ALJ determined Ms. Surles had the following severe impairments:
degenerative disc disease of the back and depressive disorder. (TR. 25). At step three,
the ALJ found that Plaintiff’s impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1
(TR. 26).
At step four, the ALJ found that Plaintiff could not perform her past relevant work.
(TR. 31). The ALJ further concluded that Ms. Surles had the residual functional capacity
(RFC) to:
[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and
416.967(a) except she cannot balance or climb ladders, ropes, or scaffolds.
She can occasionally climb stairs and ramps, kneel, crouch, crawl, and

2

stoop. She can understand, remember, and carry out simple tasks with
routine supervision. She cannot have public contact or perform customer
service work. She is able to interact appropriately with supervisors and
coworkers on a superficial work basis. She is able to adapt to work
situations.
(TR. 28).
Based on the finding that Ms. Surles had no past relevant work, the ALJ proceeded
to step five. There, she presented several limitations to a vocational expert (VE) to
determine whether there were other jobs in the national economy that Plaintiff could
perform. (TR. 66-67). Given the limitations, the VE identified three jobs from the
Dictionary of Occupational Titles (DOT). (TR. 67). The ALJ adopted the testimony of the
VE and concluded that Ms. Surles was not disabled based on her ability to perform the
identified jobs. (TR. 32-33).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ: (1) failed to develop the record, (2) erred in

the RFC determination, (3) erred in the credibility analysis, and (4) erred at step five.
(ECF No. 16).2
IV.

NO ERROR IN FAILING TO DEVELOP THE RECORD
Ms. Surles alleges the ALJ failed to develop the record concerning both her physical

and mental impairments. (ECF No. 16:2-5). The Court disagrees.

On page one of her opening brief, Ms. Surles also alleges a fifth error entitled “The ALJ’s RFC
is internally flawed.” (ECF No. 16:1). But in the body of the brief, Plaintiff fails to present any
substantive argument regarding this alleged error, instead writing only four sub-propositions
corresponding to each of the errors listed above. See ECF No. 16: 1-10.
2

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A.

ALJ’s Duty to Develop the Record

It is beyond dispute that the burden to prove disability in a social security case is
on the claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); 20 C.F.R. §
404.1512(a) & 416.912(a) (“[Y]ou must bring to our attention everything that shows that
you are . . . disabled.”). Nevertheless, because a social security disability hearing is a
non-adversarial proceeding, the ALJ is “responsible in every case to ensure that an
adequate record is developed during the disability hearing consistent with the issues
raised.” Hawkins, 113 F.3d at 1164 (internal citation and quotation marks omitted).
Generally, this means that the “ALJ has the duty to . . . obtain [ ] 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).
A.

Physical Impairments

Regarding Plaintiff’s physical limitations, the ALJ opined that Ms. Surles had the
RFC to:
[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and
416.967(a) except she cannot balance or climb ladders, ropes, or scaffolds.
She can occasionally climb stairs and ramps, kneel, crouch, crawl, and
stoop.
(TR. 28). Ms. Surles alleges that the ALJ “created [the] functional limitations out of thin
air” because “[t]here were no opinions of record as to Plaintiff’s functional limitations
stemming from her ‘severe’ physical impairments of degenerative disc disease of the
lumbar spine.” (ECF No. 16:2). Due to the alleged lack of evidence, Ms. Surles states:
“[T]he ALJ should have fulfilled her duty to develop the record fully and fairly and

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obtained some medical opinion from an examining or treating physician as to Plaintiff’s
functional limitations.” (ECF No. 16:2). For three reasons, the Court rejects this argument.
First, a written opinion outlining specific functional limitations is not necessary for
an ALJ to make an RFC determination. See Howard v. Barnhart, 379 F.3d 945, 949 (10th
Cir. 2004) (noting that the ALJ “is charged with determining a claimant’s RFC from the
medical record” and rejecting an argument “that there must be specific, affirmative,
medical evidence on the record as to each requirement of an exertional work level before
an ALJ can determine RFC within that category”). Ms. Surles cites Baker v. Barnhart, 84
F. App’x 10, 14 (2003) suggesting otherwise, but in that case, the only pieces of evidence
concerning the claimant’s functional limitations were the claimant’s testimony, which the
ALJ rejected, and a check-the-box form, without an accompanying narrative discussion,
which was completed by a non-examining physician. See Baker, 84 F. App’x at 14. Under
those circumstances, the Court remanded, concluding that the record contained
insufficient evidence on which the ALJ could have based his RFC. Id.
Here, however, the record contained ample evidence on which the ALJ could have
based her RFC determination regarding the functional effects of Plaintiff’s back
impairment. See TR. 445 (MRI of Plaintiff’s lumbar spine); 458, 459, 460, 464, 465 484493, (records from Jackson County Memorial Hospital where Ms. Surles was treated for
lower back pain); 494 (second MRI of Plaintiff’s lumbar spine); 536, 546-549 (records
from treating physician Dr. Patrick Felicitas who treated Plaintiff for lower back pain);
550-553 (records from treating physician Dr. Kathleen Murray who treated Plaintiff for
lower back pain); 600-607 (records from PHS Indian Clinic where Ms. Surles was treated

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for lower back pain); 876-880, 891-894, 900-903, 908-930 (records from Indian Health
Center where Plaintiff was treated for lower back pain).
Second, the duty to further develop the record was not triggered because at the
hearing, Plaintiff’s attorney did not identify any issues requiring further development. See
TR. 42-69; Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (“[I]n a counseled
case, the ALJ may ordinarily require counsel to identify the issue or issues requiring
further development. . . . In the absence of such a request by counsel, we will not impose
a duty on the ALJ to order a consultative examination unless the need for one is clearly
established in the record.”)
Finally, as noted by the commissioner, the SSA did order a consultative
examination for January 26, 2012, but Ms. Surles failed to keep the appointment. See
ECF No. 20:6 TR. 661.
B.

Mental Impairments

Regarding Plaintiff’s mental limitations, the ALJ opined that Ms. Surles could:
[U]nderstand, remember, and carry out simple tasks with routine
supervision. She cannot have public contact or perform customer service
work. She is able to interact appropriately with supervisors and coworkers
on a superficial work basis. She is able to adapt to work situations.
(TR. 28). As noted by Plaintiff, the ALJ based these findings on the opinion of nonexamining State Agency physician, Dr. E. Czarnecki, whose opinion the ALJ accorded
“great weight.” (TR. 31). Plaintiff also correctly notes that Dr. Czarnecki appeared to have
based his opinion on the findings from consulting examiner Dr. Reda Rasco. See TR. 659
(Dr. Czarnecki’s summary of Dr. Rasco’s findings). Dr. Rasco performed her examination

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on January 20, 2012 and Dr. Czarnecki rendered his findings on March 16, 2012. (TR.
594-598, 644-659). Ms. Surles’ administrative hearing was on July 1, 2014. (TR. 42).
Plaintiff challenges the ALJ’s reliance on Dr. Czarnecki’s opinion as a basis for his
mental RFC findings, arguing that the opinion was “stale” as it was completed almost 28
months prior to the hearing. (ECF No. 16:3). According to Ms. Surles, the ALJ should have
further developed the record “and obtained some medical opinion as to Plaintiff’s
functional limitations stemming from her ‘severe’ mental impairments.” (ECF No. 16:4).
The Court rejects this argument.
In addition to reports from Dr. Czarnecki and Dr. Rasco, the record contained other
evidence concerning Plaintiff’s mental health treatment. See TR. 502-520 (records from
Red Rock Behavioral Health Services); 526-529 (records from Jackson County Memorial
Hospital Medical Clinic); 971-973 (records from Jackson County Memorial Hospital
Counseling Center). Although the records from Red Rock and Jackson County Memorial
Hospital Medical Clinic pre-dated Dr. Czarnecki’s report, the ALJ was still entitled to rely
on them in formulating the RFC as they occurred during the disability period. See Howard

v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (“the ALJ . . . is charged with determining
a claimant’s RFC from the medical record).
In support of her argument that further development was necessary because Dr.
Czarnecki’s opinion was “stale,” Plaintiff relies on Chapo v. Astrue, 682 F.3d 1285 (2012).
In Chapo, the ALJ had relied on the opinion of an examining physician who had rendered
an opinion prior to additional testing and findings by another physician who indicated
greater restrictions than noted by the original examining physician. Chapo, 682 F.3d at

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1292. The plaintiff challenged the ALJ’s reliance on the examining physician’s opinion and
the Tenth Circuit Court of Appeals stated:
[W]hile [the examining physician’s] opinion may have been supported by
and consistent with the medical record of evidence when he gave it in early
2008, it does not account for material objective evidence developed long
afterward. The staleness of his opinion . . . is perhaps reflected in the ALJ’s
recognition that [the plaintiff’s] skeletal condition actually restricted her to
a limited range of light work.

Id. at 1292-1293 (internal quotation marks omitted). Ultimately, the Court noted that the
ALJ’s reliance on the “stale” opinion was “troubling” and on remand, the Court
“encourage[ed] the ALJ to obtain an updated exam or report[.]” Id. at 1293.
Ms. Surles’ reliance on Chapo is both misplaced and not persuasive. First, unlike
the situation in Chapo, the record here did not contain any mental health evidence which
revealed that Plaintiff suffered from greater mental health restrictions than those opined
by Dr. Czarnecki. (TR. 267-976). Second, the Tenth Circuit only “encourage[ed]” the ALJ
to obtain an updated report in lieu of the apparent conflict, but the Court did not
definitively hold that further development was required in every case where the ALJ relied
on a seemingly “stale” report.
Finally, at the hearing, Plaintiff’s counsel failed to identify any issue concerning
Plaintiff’s mental health which he believed needed further development. (TR. 42-69). As
discussed, this factor additionally weighs against Plaintiff in determining whether further
development was required. See Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997).

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C.

Summary

In sum, Ms. Surles failed to attend an ordered consultative physical examination,
Plaintiff’s counsel’s failed to identify any issues needing further development, and the
record contained an abundance of evidence from various medical sources who treated
Plaintiff’s various impairments. Accordingly, the Court concludes that the ALJ did not err
in failing to further develop the record regarding Ms. Surles’ physical or mental limitations.
V.

NO ERROR IN THE RFC DETERMINATION
In her second allegation of error, Plaintiff argues: (1) the RFC for “simple” work

failed to reflect the ALJ’s finding that Plaintiff suffered from “moderate” difficulties in the
area of concentration, persistence, and pace, and (2) that the RFC failed to account for
limitations related to Ms. Surles’ use of a TENS unit and her PTSD. Neither argument has
merit.
First, the ALJ’s finding that Ms. Surles suffered from “moderate” difficulties in the
area of “concentration, persistence, and pace” was a finding made on a “Psychiatric
Review Technique” (PRT) form completed by Dr. Czarnecki. (TR. 657).3 But the PRT form,
is “not an RFC assessment, but [is] used to rate the severity of mental impairments at steps
2 and 3 of the sequential evaluation process.” SSR 96-8p, at *4. Thus, the ALJ had no duty
to express these particular findings in the RFC. See Vigil v. Colvin, 805 F.3d 1199, 1203

It is evident from Ms. Surles’ challenge to the ALJ’s findings on page 27 of the transcript that
she is challenging the findings made by Dr. Czarnecki as part of the PRT, as page 27 comprises
the ALJ’s discussion of findings on the PRT, and not any additional findings made in a separate
assessment from Dr. Czarnecki regarding Ms. Surles’ mental residual functional capacity. See ECF
No. 16:5; TR. 27.
3

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(10th Cir. 2015) (“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.”); see also Beasley v. Colvin, 520 F. App’x. 748,
754 (10th Cir. 2013) (no error in the RFC’s failure to reflect a “moderate” limitation finding
from the PRT form).
Next, Ms. Surles states: “The ALJ failed to account for Plaintiff’s use of a TENS unit
in the RFC. Plaintiff confirms she uses a TENS unit for 45 minute treatments.” (ECF No.
16:6). But aside from this statement, Ms. Surles fails to argue how the use of a TENS unit
would interfere with her ability to work. See Kirkpatrick v. Colvin, ___ F. App’x ___, 2016
WL 5920745 at *3 (10th Cir. 2016) (rejecting Plaintiff’s argument regarding the alleged
omission of certain limitations in an RFC because “[plaintiff] doesn’t explain how these
restrictions fail to account for his [limitations] . . . [a]nd it isn’t our obligation to search
the record and construct a party’s arguments.”); McAnally v. Astrue, 241 F. App’x 515,
518 (10th Cir. 2007) (affirming in part because “with regard to [her severe impairments],
the claimant has shown no error by the ALJ because she does not identify any functional
limitations that should have been included in the RFC assessment or discuss any evidence
that would support the inclusion of any limitations” (citation and internal brackets
omitted)).
Finally, Plaintiff argues that the ALJ “failed to consider the full effects of Plaintiff’s
PTSD.” (ECF No. 16:6). In support, Ms. Surles cites to a therapist’s diagnosis of PTSD,
Dr. Czarnecki’s subsequent acknowledgement of the disorder, and Dr. Rasco’s findings
which noted “The reported depression and PTSD are intertwined and assume elements

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of anxiety.” (ECF No. 16:6). But “[t]he mere diagnosis of a condition does not establish
its severity or any resulting work limitations.” Paulsen v. Colvin, ___ F. App’x. ___, 2016
WL 6440368 at *4 (10th Cir. 2016). Additionally, Plaintiff fails to identify any specific
functional limitations stemming from the PTSD which would affect her ability to work. See

supra, McAnally. Although Dr. Rasco stated that Plaintiff’s prognosis is “poor,” she also
found that Ms. Surles’ use of a prescribed antipsychotic and mood stabilizer “appear[ed]
to control the reported psychosis and anxiety.” (TR. 598).
In sum, the Court concludes the ALJ did not err in failing to: (1) include additional
RFC restrictions related to Ms. Surles’ use of a TENS unit or her PTSD or (2) translate the
“moderate” finding on the PRT form into particular functional limitations in the RFC.
VI.

NO ERROR IN THE CREDIBILITY ANALYSIS
Ms. Surles alleges that the ALJ committed legal error in the credibility analysis and

that several of the reasons she provided to discount Plaintiff’s credibility lacked substantial
evidence. (ECF No. 16:6-9). The Court disagrees.
A.

The Administrative Law Judge’s Duty in Assessing Credibility

As part of the disability determination, the ALJ had to consider the evidence and
decide whether she believed Ms. Surles’ subjective complaints. See SSR 96-7p, at *1-2
(July 2, 1996). In doing so, the ALJ had a duty to make specific findings and link them to
substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (noting the
duty to “closely and affirmatively link[ ]” credibility findings to substantial evidence); SSR
96-7p, at *4 (noting the duty to provide “specific reasons for the weight given to the
individual’s statements” “articulated in the determination or decision” in a manner

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“sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight” given “to the individual’s statements and the reasons for that weight”).
Besides objective evidence, the ALJ may consider certain factors in evaluating a
claimant’s credibility, including:


The individual’s daily activities;



The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;



Factors that precipitate and aggravate the symptoms;



The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms;



Treatment, other than medication, the individual receives or
has received for relief of pain or other symptoms;



Any measures other than treatment the individual uses or has
used to relieve pain or other symptoms; and



Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

Id. at 3; Keyes-Zachary, 695 F.3d 1156, 1167 (10th Cir. 2012). However, “an ALJ is not
required to address each factor in his decision.” Duncan v. Colvin, 608 Fed Appx. 566,
578 (10th Cir. 2015).
B.

No Error in the ALJ’s Credibility Determination

In evaluating Plaintiff’s credibility, the ALJ stated:
The claimant’s statements concerning her impairments and their impact on
her ability to work are not entirely credible in light of the medical history,
the reports of the treating and examining practitioners, the findings made
on examination, description of her activities and life style, and the claimant’s
demeanor at hearing. The claimant has impairments that are reasonably

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expected to produce the type of pain and symptomology she alleges, but
her complaints suggest a greater severity of impairment than is shown by
the objective medical evidence.
(TR. 29). The ALJ then summarized Plaintiff’s testimony, her daily activities, reports of
her functional limitations as listed in disability reports, objective findings in the medical
record, and Plaintiff’s use of pain medication. (TR. 29-30). Within the summary, the ALJ
listed eleven reasons to discount Ms. Surles’ credibility:
1. No objective evidence to support Plaintiff’s allegations of knee buckling;
2. Plaintiff’s failure to report stiffness and severe pain in her legs to any
treating or examining physician;
3. No discussion of frequent migraines in the medical record despite Plaintiff’s
complaints that she suffered from four migraines per month;
4. No evidence in the record to support Plaintiff’s allegations that she suffered
side effects from her medications such as sleepiness and difficulty focusing;
5. Inconsistencies in Plaintiff’s allegations regarding her ability to sit;
6. An inconsistency in Plaintiff’s allegations regarding her ability to walk;
7. No objective evidence to support Plaintiff’s allegations of swollen legs and
feet;
8. Plaintiff’s 2013 arrest for public intoxication, domestic abuse and battery;
9. A successful back surgery, supported by objective findings showing no
further degenerative changes of the spine;
10. Plaintiff’s successful use of prescription pain medications and mental health
medications;
11. Plaintiff’s non-compliance with regular mental health treatment or
recommendations to attend counseling.

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(TR. 29-31). Ms. Surles alleges: “The ALJ’s credibility determination is both factually and
legally flawed.” (ECF No. 16:6). In support, Plaintiff presents seven arguments, but none
have merit.
First, Plaintiff alleges that the ALJ improperly relied on Plaintiff’s demeanor to
discredit her testimony. (ECF No. 16:6-7). While an ALJ may not rely solely upon a
claimant’s demeanor to reject complaints of disabling pain, no error exists when the ALJ
considers demeanor as one factor in evaluating Plaintiff’s credibility. See Hayman v.

Sullivan, 977 F.2d 595 (10th Cir. 1992) (“The ALJ may not rely solely upon a claimant’s
demeanor to reject complaints of disabling pain. In this case, however, the ALJ properly
considered claimant’s demeanor, along with all the other evidence presented, in
determining that claimant’s complaints of disabling pain were not credible.”) (internal
citation omitted).
Second, Ms. Surles challenges the ALJ’s reliance on “findings on examination,”
stating:
As to the findings on examination, Dr. Rasco, to whose opinion the ALJ gave
“great” weight, believed Plaintiff as to her past and present condition.
Nonetheless, the ALJ found there [sic] a lack of evidence of instability
corroborating Plaintiff’s statements that her legs had a tendency to go numb
after standing for 10 to 15 minutes. The record confirms Plaintiff visited the
ER to be treated for injuries sustained by a fall. Plaintiff specifically and
repeatedly told her physician about the numbness in her legs.
(ECF No. 16:7). The problem with this argument is that the ALJ never found “a lack of
evidence of instability” corroborating Plaintiff’s statements regarding her legs going
numb. In fact, the only statement the ALJ made regarding Plaintiff’s leg numbness was
that “[Plaintiff] says she can stand 10 to 15 minutes before experiencing numbness in

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her legs.” (TR. 29). Outside of this assertion, the ALJ never commented on whether he
believed Ms. Surles or not regarding this particular impairment. (TR. 29).
Third, Plaintiff states: “The ALJ erroneously found Plaintiff had not mentioned to
any treating or examining physician about the episodes in which her legs become stiff at
night. Plaintiff did tell her therapist.” (ECF No. 16:7). In support of the challenge, Ms.
Surles cites page 459 of the transcript. (ECF No. 16:7). This record does not corroborate
Plaintiff’s claim. (TR. 459). In the record, the physical therapist notes Plaintiff’s report of
nighttime bilateral lower extremity tingling, but not stiffness. (TR. 459). The distinction is
critical, as Plaintiff testified regarding two distinct leg issues. When the ALJ asked Ms.
Surles to discuss her leg pain, she replied “It depends on which leg pain you’re
discussing.” (TR. 58). Plaintiff then went on to describe: (1) numbness and a feeling that
her legs were “asleep” which usually occurred after sitting a long time and (2) leg stiffness
which occurred in the middle of the night. (TR. 58-59). It appears as though Plaintiff
reported the former problem to the physical therapist, but not the latter. (TR. 459).
Fourth, Plaintiff challenges the ALJ’s reliance on her inconsistent allegations
regarding her ability to sit. (ECF No. 16:7). In the decision, the ALJ noted that in one
disability report, Plaintiff stated that she could sit only 3-5 minutes before having to
change positions. (TR. 29); see TR. 232. But as the ALJ noted, in a report dated six
months later, Plaintiff stated that she could sit for 20-30 minutes before having to change
positions. (TR. 29); see TR. 261. Ms. Surles contends: “There is no inconsistency,
however. Plaintiff sits for 20-30 minutes with changing of positions or getting up and then
down.” (ECF No. 16:7). But the record does not support Ms. Surles’ claim, as the report

15

documenting the 20 to 30-minute period does not also allow for intermittent changing of
positions within that time frame. See TR. 261.
Fifth, Plaintiff states:
The ALJ found Plaintiff’s testimony she went to Norman or Blanchard once
a week to be inconsistent with her testimony she could drive only short
distances. Norman was only 16 miles away. This is a short distance. As to
Blanchard, Plaintiff lives in Blanchard. And, Plaintiff did not testify she
drove—only that she traveled to these places.
(ECF No. 16:8). Plaintiff again mischaracterizes the ALJ’s references to Plaintiff’s travels.
The ALJ did not point to any “inconsistency,” but merely noted that the evidence was
indicative of Plaintiff’s ability to “drive herself as necessary.” (TR. 30). Plaintiff correctly
notes that Ms. Surles’ testimony regarding her trips were in response to the ALJ’s question
regarding whether she “traveled” anywhere. (TR. 50). While the ALJ did not specifically
ask Plaintiff whether she drove on those travels, Ms. Surles likewise never stated that she
did not drive. (TR. 50-52). In any event, the ALJ did not rely on an “inconsistency”
regarding Plaintiff’s travels to discount her credibility. (TR. 30).
Sixth, Plaintiff contends: “The ALJ has also improperly relied on Plaintiff’s
purported ability to perform activities of daily living. . . . In the Tenth Circuit, the
performance of household tasks does not establish that a person is capable of engaging
in substantial gainful activity.” (ECF No. 16:8) (internal citation omitted). But Ms. Surles
is incorrect, as the ALJ may rely on a claimant’s daily activities as one factor in the
credibility analysis. See SSR 96-7p at *3. Furthermore, aside from Plaintiff’s vague
statement, she makes no substantive argument regarding which of her daily activities the
ALJ had improperly credited.

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Finally, Plaintiff states: “The ALJ concluded there was no discussion of Plaintiff’s
migraines in the medical record. On the contrary, Plaintiff was treated for migraines and
reported headaches.” (ECF No. 16:8-9). Again, Plaintiff mischaracterizes the ALJ’s
findings. The ALJ did not completely discredit Plaintiff’s complaints of migraines, rather
only noted that her testimony regarding four migraines per month was not supported by
the record. (TR. 29). Indeed, Plaintiff’s own references to the record corroborate the ALJ’s
statement. Of the seven pages Plaintiff cited in support of her claim for “migraines and
headaches,” two did not reference headaches at all (TR. 397, 402), one stated that
Plaintiff was “positive” for a complaint of headache (TR. 403), two discussed a head
trauma suffered by Plaintiff as a result of her being assaulted (TR. 522, 523), and two
noted that Ms. Surles took medication to treat migraines. (TR. 596, 606). But these
records do not support Plaintiff’s allegations that she suffered from migraine headaches
four times a month, which had been the ALJ’s conclusion.
C.

Summary

In sum, Plaintiff argues legal error—that the ALJ made conclusory statements
regarding Plaintiff’s testimony without evidentiary support—and that the ALJ’s rationales
lacked substantial evidence. Plaintiff is wrong on both accounts. In discounting Ms. Surles’
credibility, the ALJ engaged in a lengthy discussion of Plaintiff’s testimony, disability
reports, and medical findings. (TR. 29-31). The ALJ provided eleven reasons to discount
Plaintiff’s credibility, linking each to specific evidence in the record. (TR. 29-31).
Accordingly, the Court concludes that the ALJ’s credibility was legally correct and was
supported by substantial evidence.

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VII.

NO ERROR AT STEP FIVE
As part of the RFC determination, the ALJ stated that Ms. Surles could perform

jobs which involved the ability to “understand, remember, and carry out simple tasks with
routine supervision.” (TR. 28). With these limitations, a VE testified that Ms. Surles could
perform the jobs of: (1) document scanner (DOT #249.587-018), (2) address clerk (DOT
#209.587-010), and (3) product inspector (DOT #726.684-050). (TR. 32). All of these
jobs are “unskilled” and the job of address clerk and product inspector require “reasoning
level 2” while the job of document scanner requires “reasoning level 3.” See DOT
#249.587-018 (document scanner); DOT #209.587-010 (address clerk), and DOT
#726.684-050 (product inspector); see also TR. 32. By definition, “reasoning level 3”
requires the ability to “[a]pply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form. Deal with problems involving several
concrete variables in or from standardized situations.” DOT, Appendix C, Components of
the Definition Trailer. “Reasoning level 2” requires 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.” Id.
According to Ms. Surles, the ALJ improperly relied on the job of document scanner
because it required a “reasoning level 3,” which Plaintiff alleges is inconsistent with the
ALJ’s finding that Plaintiff could only perform simple work. (ECF No. 16:9-10). The Court
agrees. See Hackett v. Barnhart, 395 F3d. 1168, 1176 (10th Cir. 2005) (finding that an

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RFC for “simple and routine work tasks” “seem[ed] inconsistent with the demands of
level-three reasoning.”) (internal citation omitted).
However, the ALJ also found that Plaintiff could perform the jobs of address clerk
and product inspector, both of which require “reasoning level 2.” See DOT #209.587-010
(address clerk), and DOT #726.684-050 (product inspector). But Plaintiff argues that
those jobs would be improper “[h]ad the ALJ included all the limitations opined by Dr.
Czarnecki in the RFC,” specifically Dr. Czarnecki’s opinion that Plaintiff had marked
limitations in the ability to understand, remember, and carry out detailed instructions.”
(ECF No. 16:10).
This particular limitation is found in Section I of Dr. Czarnecki’s Mental Residual
Functional Capacity Assessment (MRFCA). (TR. 644). In Section III of the MRFCA,
however, Dr. Czarnecki explained the effect of his Section I findings and opined that
Plaintiff could “perform simple tasks with routine supervision.” (TR. 646). The ALJ
accorded Dr. Czarnecki’s opinion “great weight” and adopted the physician’s Section III
findings in the RFC. See TR. 28. The initial issue, therefore, is whether the ALJ erred in
failing to incorporate Dr. Czarnecki’s Section I findings in the RFC. If so, a potential error
could exist at step five. But here, no error occurred.
The Tenth Circuit has held that “[w]here a psychologist’s Section III narrative does
not contradict any Section I limitations and describes the effect each Section I limitation
would have on the claimant’s mental RFC, the ALJ may properly look to only the Section
III narrative as the psychologist’s opinion regarding mental RFC.” Fulton v. Colvin, 631 F.
App’x. 498, 502 (10th Cir. 2015) (citing Carver v. Colvin, 600 F. App’x. 616, 618–19 (10th

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Cir. 2015)). In Section I, Dr. Czarnecki concluded that Plaintiff had “marked” difficulties
in her ability to understand, remember, and carry out detailed instructions. (TR. 644). In
Section III, Dr. Czarnecki explained the effect of that limitation by limiting Plaintiff to
performing “simple tasks with routine supervision.” (TR. 646). Accordingly, the ALJ was
entitled to only adopt the Section III narrative and no error existed by failing to adopt
the particular Section I finding as argued by Plaintiff. See Fulton v. Colvin, 631 F. App’x
498, 506-507 (10th Cir. 2015) (no error in failing to adopt specific Section I finding when
the Section III narrative, with was adopted, accounted for the Section I finding). Because
the ALJ properly relied on Dr. Czarnecki’s Section III findings, the issue becomes whether
the ALJ properly relied on the jobs of address clerk and product inspector, which both
required “reasoning level 2.” The answer is yes.
In Hackett v. Barnhart,4 The Tenth Circuit Court of Appeals addressed a similar
challenge. There, the Court noted that “level-two reasoning requires the worker 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.” Id. The plaintiff had an RFC which required him to perform only
“simple and routine work tasks,” which he argued was inconsistent with the jobs at step
five, which required “reasoning level 3.” Id. The Court agreed, stating that the RFC for
“simple and routine work tasks” was consistent with level 2 reasoning. Id.

4

395 F. 3d. 1168 (10th Cir. 2005).

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Hackett v. Barnhart is controlling. Similar to the plaintiff in Hackett, the ALJ here
found that Ms. Surles was capable of performing “simple tasks with routine supervision.”
(TR. 28). Under Hackett, this RFC is consistent with “reasoning level 2” which is required
by the jobs of address clerk and product inspector. See DOT #209.587-010 and DOT
#726.684-050. Accordingly, the Court concludes that no error exists.5
ORDER

Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties,
the undersigned magistrate judge AFFIRMS the Commissioner’s decision.
ENTERED on February 23, 2017.

In her Reply Brief, Ms. Surles argues that reliance on the jobs of address clerk and product
inspector would be improper because the ALJ failed to make a finding that these jobs existed in
“significant numbers” when considered without the job of document preparer. (ECF No. 21:4).
But the Court will not address this argument because Plaintiff failed to raise the issue in her
Opening Brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not
ordinarily review issues raised for the first time in a reply brief.”).
5

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