Barry v. Commissioner of Social Security Administration
Filing
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MEMORANDUM OPINION: The decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Gary M. Purcell on 3/29/2018. (cps)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
PATRICK BARRY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. CIV-17-291-P
ORDER
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision
of Defendant Commissioner denying his application for disability insurance (“DIB”) and
supplemental security income benefits (“SSI”) under Title II and Title XVI of the Social
Security Act, 42 U.S.C. §§ 416(i), 423, 1382. Defendant has answered the Complaint and
filed the administrative record (hereinafter AR___), and the parties have briefed the issues.
The parties have consented to proceed before the undersigned Magistrate Judge pursuant
to 28 U.S.C. § 636(c)(1).
For the following reasons, it is recommended that the
Commissioner’s decision be affirmed.
I.
Administrative History and Agency Decision
On December 16, 2013, Plaintiff protectively filed applications for DIB and SSI
alleging that he became disabled on December 31, 2008, due to mental issues, back pain,
and bad knees. AR 16, 203, 208. At a hearing conducted before an Administrative Law
Judge (“ALJ”), Plaintiff amended his alleged onset date to December, 16, 2013. AR 3334. A vocational expert (“VE”) also testified at the hearing. The ALJ issued a decision
finding that Plaintiff was not disabled within the meaning of the Social Security Act.
Following the agency’s well-established sequential evaluation procedure, the ALJ found
at the first step that Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2013. The ALJ further found that Plaintiff had not engaged in
substantial gainful activity since December 16, 2013, the amended alleged onset date. At
the second step, the ALJ found that Plaintiff had severe impairments of degenerative disc
disease of cervical and lumbar spines; osteoarthritis of knees status-post remote right
arthroscopy; major depressive disorder; anxiety disorder; generalized anxiety disorder;
post-traumatic stress disorder; and amphetamine, marijuana, LSD, and alcohol dependence
in reported remission. At the third step, the ALJ found that these impairments were not
per se disabling as Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the requirements of a listed impairment.
At step four, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform work at the light exertional level in that he could lift up to 20 pounds
with no more than frequent lifting or carrying of up to 10 pounds; stand/walk 6 hours out
of an 8-hour workday; and sit 6 hours out of an 8-hour workday. The ALJ also included
additional limitations as follows:
[Plaintiff] is able to understand, remember, and carryout simple and some
complex instructions consistent with semiskilled work that is repetitive and
routine in nature and able to relate and interact with co-workers and
supervisors on a work-related basis only with no to minimal interaction with
the general public. [Plaintiff] can adapt to a work situation with these
limitations/restrictions and his medications would not preclude him from
remaining reasonably alert to perform required functions presented in a work
setting.
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AR 20. Based on this RFC finding and testimony regarding the requirements of Plaintiff’s
previous work, the ALJ determined that Plaintiff was unable to perform any past relevant
work.
Reaching the fifth and final step of the required sequential analysis, and relying on
the VE’s testimony as to the ability of a hypothetical individual with Plaintiff’s work
history, age, education, and RFC, the ALJ found that Plaintiff was capable of performing
jobs that existed in the national economy. These included work as a press machine
operator, production inspector, and office cleaner. Based on these findings, the ALJ
concluded that Plaintiff had not been under a disability, as defined by the Social Security
Act, from December 16, 2013, through the date of the decision.
The Appeals Council denied Plaintiff’s request for review, and therefore the ALJ’s
decision is the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481;
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II.
Issues Raised
Plaintiff argues that the ALJ legally erred by failing to weigh the medical opinion
evidence under the correct legal standards. Plaintiff’s Opening Brief (Doc. # 15) at 5-14.
Plaintiff also asserts that the ALJ erred in determining that Plaintiff can perform significant
gainful activity. Pl.’s Br. at 14-15.
III.
General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner’s decision is supported by
substantial evidence in the record and whether the correct legal standards were applied.
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758,
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760 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. It requires more than a scintilla, but less
than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The
“determination of whether the ALJ’s ruling is supported by substantial evidence must be
based upon the record taken as a whole. Consequently, [the Court must] remain mindful
that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall,
561 F.3d at 1052 (citations, internal quotation marks, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with
disabilities. 42 U.S.C. § 401 et seq. A disability is an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42
U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §§ 404.1509 (duration requirement), 416.909
(same). Both the “impairment” and the “inability” must be expected to last not less than
twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the
claims of disability applicants. See 20 C.F.R. §§ 404.1520(a)(4), (b)-(g), 416.920(a)(4),
(b)-(g). “If the claimant is not considered disabled at step three, but has satisfied her burden
of establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the [RFC] to perform other work in
the national economy in view of her age, education, and work experience.” Fischer-Ross
v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). “The claimant is entitled to disability
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benefits only if he [or she] is not able to perform other work.” Bowen v. Yuckert, 482 U.S.
137, 142 (1987).
IV.
Analysis
A. The ALJ did not err in weighing the medical opinion evidence.
1. The ALJ used the correct legal standards when considering the treating
physician’s opinion.
Plaintiff argues that the ALJ failed to weigh the opinion of Plaintiff’s treating
physician under the proper legal framework. Pl.’s Br. at 8-11. The Court disagrees. The
ALJ must follow a two-step process, generally known as the treating physician rule, when
considering a treating physician’s medical opinion about a claimant. The ALJ “must first
consider whether the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014)
(internal quotation and citation omitted). “If the ALJ finds that the opinion is wellsupported, [the ALJ] must then confirm that the opinion is consistent with other substantial
evidence in the record.” Id. (quotation and citation omitted). If the ALJ determines that
the medical opinion is deficient in either of these respects, the ALJ may give the opinion
less than controlling weight. Id. If the ALJ finds that a medical opinion is not entitled to
controlling weight, the ALJ must proceed to the second phase of the inquiry to determine
what weight has been given to the opinion “and give good reasons, tied to the factors
specified in the [governing] regulations for this particular purpose, for the weight
assigned.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). See 20 C.F.R.
§§404.1527 (listing the factors), 416.927 (same).
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Under this legal framework, then, the opinion of a treating physician is properly
denied controlling weight if it is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence.
And the opinion may be rejected outright if the ALJ gives “specific, legitimate reasons for
doing so,” relating to such matters as “the degree to which the physician’s opinion is
supported by relevant evidence,” the “consistency between the opinion and the record as a
whole,” and any “other factors . . . which tend to support or contradict the opinion.”
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks
omitted). Here the ALJ rejected the opinion Dr. Fidel had indicated on check boxes of the
medical statement form for the following reasons:
Dr. Fidel’s Medical Source Statement . . . is simply an attempt to modify a
Social Security form to add non-work related definitions. Form SSA-4734F4-SUP, at [Section] III Functional Capacity Assessment[,] notes that the
Section [I] check boxes are Summary Conclusions to support work-related
mental functional limitations. Dr. Fidel’s check box form is not supported
by the overall evidence of record[.]
R. at 22.
a. The ALJ provided proper reasons for discounting Dr. Fidel’s opinion.
On April 17, 2015, Dr. Fidel completed a form entitled Mental Medical Source
Statement. AR 308-10. As the ALJ noted in his decision, and as he and Plaintiff’s counsel
discussed at the hearing, Dr. Fidel’s form was modified from a standard Social Security
form. See AR 22, 50-52 (ALJ discussing amended form). Both the standard form, Form
SSA-4734-F4-SUP (“MRFCA”), and Dr. Fidel’s form are comprised of three sections.
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1
Compare MRFCA, with AR 308-10.
Section I of both forms is titled “Summary
Conclusions” and “is for recording summary conclusions derived from the evidence in
file.” MRFCA, Sec. I; AR 308; see also Carver v. Colvin, 600 F. App’x 616, 618 (10th
Cir. 2015). On both forms, the instructions for this section explicitly state that “[d]etailed
explanation of the degree of limitation for each category (A through D), as well as any
other assessment information you deem appropriate, is to be recorded in Section III
(Functional Capacity Assessment).”
Section III of the MRFCA, the “Functional Capacity Assessment,” is for recording
a medical consultant’s formal mental functional capacity assessment. See Carver, 600 F.
App’x at 618. The MRFCA instructions for Section III direct the medical consultant to:
Record in this section the elaborations on the preceding capacities. Complete
this section ONLY after the SUMMARY CONCLUSIONS section has been
completed. Explain your summary conclusions in narrative form. Include
any information which clarifies limitation or function. Be especially careful
to explain conclusions that differ from those of treating medical sources or
from the individual’s allegations.
MRFCA, Sec. III. The Tenth Circuit has explained that while “[t]he purpose of Section I
is chiefly to have a worksheet to ensure that the psychiatrist or psychologist has considered
each of these pertinent mental activities and the claimant’s. . . degree of limitation, [i]t is
the narrative written by the psychiatrist or psychologist in Section III that adjudicators are
to use as the assessment of RFC.” Carver, 600 F. App’x at 618 (internal quotation marks,
alterations, and citations omitted).
1
SSA-4734-F4-SUP,
Mental
Residual
Functional
Capacity
Assessment.
http://ssaconnect.com/tfiles/SSA-4734-F4-SUP.pdf (last accessed March 27, 2018).
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Dr. Fidel, however, did not complete Section III of his form. See AR 310. As such,
he provided only a list of checked boxes with no narrative description or explanation of
functional limitations. The ALJ cited Dr. Fidel’s lack of explanation as a reason for
discounting Dr. Fidel’s opinion. AR 22 (“Form SSA-4734-F4-SUP, at [Section] III
Functional Capacity Assessment[,] notes that the Section [I] check boxes are Summary
Conclusions to support work-related mental functional limitations.”).
Though it is not problematic to use check box forms to specify limitations that are
also explained on the forms or in an associated report, it was not improper for the ALJ to
discount the conclusory limitations provided by Dr. Fidel when there was no accompanying
explanation. See Simmons v. Colvin, 635 F. App’x 512, 515 (10th Cir. 2015) (relying on
Hamlin v. Barnhart, 365 F.3d 1208, 1223 (10th Cir. 2004) to affirm ALJ rejection of
limitations noted on check-box form by treating physician); Hamlin, 365 F.3d at 1223
(noting “such an evaluation form is insufficient to constitute substantial evidence when it
stands alone and unaccompanied by thorough written reports or testimony”). The Tenth
Circuit has declined to adopt a categorical position that check-box forms from treating
physicians should be rejected, but has indicated that the reviewing court should consider
the facts of the case, including the amount of information actually conveyed on the form
and whether other materials in the record support the conclusions on the form. See
Andersen v. Astrue, 319 F. App’x 712, 723-24 (10th Cir. 2009).
Here, the form itself was designed for the medical consultant to provide specific
information, including a “[d]etailed explanation of the degree of limitation.” AR 308. But
as the ALJ noted, Dr. Fidel failed to provide information other than the minimal
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checkmarks indicating limitations. AR 22, 308-10; see also AR 51 (ALJ asking “where
are the mental work related limitations that are required on the – on our form, and alluded
to in [Dr. Fidel’s] form?”). In contrast, forms prepared by the State agency consultants
(which the ALJ did rely on) included narrative explanations of the limitations listed in the
summary conclusions. See AR 66-68, 102-104. Where additional information about or
explanation of limitations could be provided, but is not, such omission can be a proper
reason for discounting limitations. Cf. Scott v. Berryhill, 695 F. App’x 399, 403 (10th Cir.
2017) (affirming decision in which ALJ discounted a treating physician’s “check-sheet”
form when ALJ provided specific reasons for the decision, including that the form “did not
provide a substantive explanation for the results checked”); Andersen, 319 F. App’x at 723
(reversing ALJ’s decision to discount physicians’ check box form, but noting that checkbox form at issue was a disability insurance form that did not ask for, or provide space for,
rationales or clinical comments and “[t]hus, it is not surprising that the two physicians
recorded somewhat limited clinical comments[.]”); Carpenter v. Astrue, 537 F.3d 1264,
1267 (10th Cir. 2008) (distinguishing between the minimal information provided in the
agency check-box form (such as MRFCA) and the more substantive information provided
on the form used by plaintiff’s physician, which was used during an examination and was
“clearly set up to record the results of a thorough physical examination; it was not the
agency’s checklist RFC form”); see also 20 C.F.R. §§ 404.1527(c)(3) (ALJ will consider
supportability for treating physician’s opinion: “[t]he better an explanation a source
provides for an opinion, the more weight we will give that opinion”), .1527(c)(6) (ALJ will
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consider other factors that tend to support or contradict a treating physician’s opinion),
416.927(c)(3) (same), .927(c)(6) (same).
Further, unlike in Andersen, this was not an instance in which the ALJ could have,
but did not, look to “other materials that could lend support to the conclusions in the
form[.]” See Andersen, 319 F. App’x at 724. In fact, the ALJ did look at Dr. Fidel’s
treatment notes and found they did not support the conclusions in Dr. Fidel’s form. See
AR 22. Plaintiff first saw Dr. Fidel on December 26, 2013, and saw him seven more times
through March 13, 2015. AR 269-72, 282-307. The ALJ specifically discussed seven of
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the eight visits. AR 21-22.
And, as such, the ALJ also properly relied on the fact that Dr. Fidel’s impairment
ratings on the form were more limiting than his own treatment notes would suggest. See
Simmons, 635 F. App’x at 515; Watkins, 350 F.3d at 1300. As set forth by the ALJ, Dr.
Fidel’s treatment notes indicated that Plaintiff was diagnosed with major depressive
disorder without psychotic features, generalized anxiety disorder with panic and
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Plaintiff further argues that the ALJ failed to weigh the Dr. Fidel’s opinion evidence under the
correct legal standards because “nothing in [the ALJ’s] decision indicates he recognized Dr. Fidel
as [Plaintiff’s] treating physician.” Pl.’s Br. at 12. However, the ALJ discussed all but one of
Plaintiff’s treatments with Dr. Fidel, thus making clear that Dr. Fidel was treating Plaintiff and that
Dr. Fidel was, therefore, Plaintiff’s treating physician. See AR 21-22.
Additionally, though the ALJ did not specify whether he was giving Dr. Fidel’s opinion
controlling weight, any error in this regard is harmless because the ALJ’s statement that Dr. Fidel’s
opinion was only entitled to “little weight” makes it clear that the ALJ did not afford that opinion
controlling weight. See Tarpley v. Colvin, 601 F. App’x 641, 643-44 (10th Cir. 2015) (finding
“any imaginable oversight” to be “clearly harmless” when ALJ did not expressly say he was not
affording treating physicians’ opinions controlling weight but explained that they were entitled to
no weight because they were inconsistent with the medical records and there was substantial
evidence to support that decision).
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agoraphobia, and PTSD. AR 21-22. Plaintiff complained of poor focus and concentration,
as well as low energy, and depressed and anxious mood. Id. But Dr. Fidel’s psychiatric
examinations consistently showed that Plaintiff’s judgment and insight was intact and
appropriate,
Plaintiff
was
alert
attention/concentration were intact.
and
oriented,
and
Plaintiff’s
memory
and
Id.; see also AR 269-72, 282-307; 20 C.F.R.
§§404.1527(c)(3) (ALJ will consider supportability for treating physician’s opinion: “[t]he
more a medical source presents relevant evidence to support an opinion . . ., the more
weight we will give that opinion”), 416.927(c)(3) (same). Finally, the ALJ also relied on
lack of support from “the overall evidence of record.” AR 22; see also 20 C.F.R.
§§404.1527(c)(4) (ALJ will consider consistency with the record as a whole when
evaluating treating physician’s opinion), 416.927(c)(4) (same). The Court finds no error
in the reasons the ALJ provided for discounting Dr. Fidel’s opinion.
b. The ALJ considered relevant factors when weighing Dr. Fidel’s opinion.
Plaintiff further argues that the ALJ failed to weigh the Dr. Fidel’s opinion evidence
under the correct legal standards because the ALJ did not apply more than one of the
relevant regulatory factors. Pl.’s Br. at 12-14; see also Watkins, 350 F.3d at 1301 (listing
factors); 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6) (same). Though the regulations
set forth several factors to be considered when evaluation medical opinions, an ALJ is not
required to mechanically apply all of the prescribed factors in a given case; rather, it is
sufficient if the ALJ “provide[s] good reasons in his decision for the weight he [gives] to
the treating sources’ opinions.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007);
see SSR 96-3p, 2006 WL 2329939, at *5 (Aug. 9, 2006) (“Not every factor for weighing
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opinion evidence will apply in every case.”). The explanation “must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.” Watkins, 350 F.3d at
1300 (internal quotation marks omitted). As set forth above, the ALJ’s discussion included
several factors, “the degree to which the physician’s opinion is supported by relevant
evidence,” “consistency between the opinion and the record as a whole,” and “other factors
. . . which tend to support or contradict the opinion.” See id. at 1301; AR 22. The ALJ’s
decision both made clear the weight he was giving to Dr. Fidel’s opinions and provided
“good” reasons for that weight. The Court finds no reversible error in the ALJ’s evaluation
of Dr. Fidel’s opinion.
2. The ALJ properly weighed the opinions of the State agency consultants.
Plaintiff also alleges that the ALJ improperly weighed the evidence of the State
agency psychological consultants. Pl.’s Br. at 11-12. The State agency psychological
consultants found that Plaintiff can “perform simple and some complex tasks, can relate to
others on a superficial work basis, can adapt to a work situation[,] but cannot relate to the
general public.” AR 22; see also AR 68, 104. Noting that the State agency psychologists
had reviewed Plaintiff’s records, the ALJ gave their findings “great weight” because they
were “well supported by the overall evidence of record.” AR 22. For the nonexamining
consultants, the ALJ was required to consider their opinions, weigh those opinions using
the applicable regulatory factors, and explain the weight given to the opinions. See 20
C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii); see also Vigil v. Colvin, 805 F.3d
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1199, 1201-02 (10th Cir. 2015). The ALJ did this. See AR 22 (discussing Exs. 3A, 7A,
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and 8A).
Plaintiff argues that the ALJ erred because, “[w]hen a treating physician’s opinions
conflict with the opinions of other medical sources, the ALJ must examine the other
medical source’s opinions to determine if they outweigh the treating physician’s opinions,
‘not the other way around.’” Pl.’s Br. at 12 (quoting Hamlin, 365 F.3d at 1215). Plaintiff
implies that the ALJ erred because he gave Dr. Fidel’s opinion little weight due to its
inconsistency with State agency consultants’ opinions. See Pl.’s Br. at 12 (“The ALJ’s
decision indicates he found Dr. Fidel’s [opinion] contradicted the opinions of the State
agency psychological consultants.”). However, that is not the case—the inconsistency
cited by the ALJ was with Dr. Fidel’s own treatment records, as well as the overall
evidence. And to the extent Plaintiff is arguing that the ALJ should have examined the
consultants’ opinions to see if they outweighed the treating physician’s opinion, the Court
finds that the ALJ properly did so. See Scott, 695 F. App’x 399, 404 (10th Cir. 2017)
(finding that the ALJ properly examined a nonexamining physician’s report vis-à-vis an
examining physician’s opinion when “[s]he gave specific, legitimate reasons for rejecting
[the treating physician’s] opinion, and carefully analyzed [the nonexamining consultant’s]
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Plaintiff argues that the ALJ erred because did not apply more than one regulatory factor when
evaluating the opinions of the State agency consultants. Pl.’s Br. at 12-13. As discussed above,
however, an ALJ is not required to mechanically apply all of the prescribed factors in a given case;
rather, it is sufficient if the ALJ “provide[s] good reasons in his decision for the weight he [gives]
to the treating sources’ opinions.” Oldham, 509 F.3d at 1258; see SSR 96-3p, 2006 WL 2329939,
at *5 (“Not every factor for weighing opinion evidence will apply in every case.”). Plaintiff has
failed to show reversible error.
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opinion and its consistency with the evidence”). The Court finds no reversible error in the
ALJ’s evaluation of the State agency consultants’ opinions.
B. The ALJ did not err in determining that Plaintiff can perform significant gainful
activity.
Plaintiff’s final argument is that the ALJ erred in finding that Plaintiff can perform
significant gainful activity when the VE testified that hypothetical limitations would
preclude employment. Pl.’s Br. at 14-15 (citing AR 55). The hypothetical limitations at
issue, however, emanated from Dr. Fidel’s opinion, which the Court has found the ALJ
properly discounted. The ALJ was not required to accept the VE’s opinion regarding the
availability of jobs to a person subject to limitations he concluded did not exist. See Bean
v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995). The VE’s testimony that at least three jobs
would be available to a hypothetical person of Plaintiff’s age, education, and work history,
with the RFC determined by the ALJ, provides substantial evidence for the ALJ’s
determination that Plaintiff is capable of performing work.
V.
Conclusion
Based on the foregoing analysis, the decision of the Commissioner is AFFIRMED.
Judgment will issue accordingly.
ENTERED this
29th day of March, 2018.
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