Bishop v. Commissioner of Social Security Administration
MEMORANDUM OPINION AND ORDER. The Court affirms the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 4/27/21. (lb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREW M. SAUL,
COMMISSIONER OF SOCIAL
Case No. CIV-20-656-SM
MEMORANDUM OPINION AND ORDER
Monica Bishop (Plaintiff) brings this action for judicial review of the
Commissioner of Social Security’s final decision that she was not “disabled”
under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties
have consented to the undersigned for proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B) and (C). See Docs. 16, 17.
Plaintiff asks this Court to reverse the Commissioner’s decision and to
remand the case for further proceedings arguing the ALJ’s residual functional
capacity assessment1 (RFC) failed to include limitations from the state agency
consultants’ persuasive opinions. Doc. 18, at 3. After a careful review of the
Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. § 416.945(a)(1).
record (AR), the parties’ briefs, and the relevant authority, the Court affirms
the Commissioner’s decision. See 42 U.S.C. § 405(g).2
The Social Security Act defines “disability” as the “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). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just [the claimant’s] underlying impairment.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535
U.S. 212, 218-19 (2002)).
Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the AR will refer to its original
Commissioner to show Plaintiff retains the capacity to perform a different type
of work and that such a specific type of job exists in the national economy.
Administrative Law Judge’s findings.
The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis to decide whether Plaintiff was disabled during the relevant
timeframe. AR 18-25; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The
ALJ found Plaintiff:
had not engaged in substantial gainful activity since
December 27, 2016, the application date;
had the following severe medically determinable
impairments: osteoarthritis, depression and post-traumatic
had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;
had the physical residual functional capacity to perform
light work except she cannot reach overhead with the
bilateral upper extremities and she can interact with the
public on a superficial basis;
could perform her past relevant work as a fast food worker,
DICOT 311.472-010, and a maid/housekeeper, DICOT
323.687.014; and thus
had not been under a disability since December 27, 2016.
See AR 20-25.
Appeals Council’s findings.
The Social Security Administration’s Appeals Council denied Plaintiff’s
request for review, see id. at 1-6, making the ALJ’s decision “the
Commissioner’s final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d
1324, 1327 (10th Cir. 2011).
Judicial review of the Commissioner’s final decision.
The Court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139
S. Ct. 1148, 1154 (2019) (“It means—and means only—such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”)
(internal quotation marks and citation omitted). A decision is not based on
substantial evidence “if it is overwhelmed by other evidence in the record.”
Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the
evidence nor substitute [its] judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
Issue for judicial review.
Plaintiff asserts the ALJ’s RFC assessment neglected to include, without
explanation, certain nonexertional limitations based on the state agency
consultants’ persuasive opinions. Doc. 18, at 3. She maintains that she could
only perform simple and some complex tasks and that she was limited in her
interactions with others (coworkers, supervisors, and the public). Id. at 7-9.
And Plaintiff argues, the ALJ failed to explain why he did not include these
limitations when questioning the vocational expert or in the RFC assessment.
Id. at 7-8.
The ALJ’s findings.
With respect to the state agency consultants’ opinions, the ALJ found:
The undersigned finds the opinions of State agency consultants,
Gary Lindsay, Ph.D. and Stephen Drake, Ph.D. persuasive. Both
doctors opined the claimant could understand, retain and perform
simple and some complex tasks on a sustain[ed] basis, could adjust
to mental demands of the work place and carry out simple
instructions, but would have difficulty with interpersonal relations
and would perform better in jobs with limited requirements to
interact with co-workers (Ex. 2A/11, 4A/13). They also opined the
claimant would not interact well with the public, but would be able
to work with normal supervisions and in a setting where the
claimant could work mostly alone (Ex. 2A/11, 4A/13). Both doctors’
opinions are supported by their review of the claimant’s medical
records and notes from her mental health providers. Their
opinions are consistent with the medical evidence generally
observing the claimant with intact memory, able to follow
directions, and fair insight and judgment (Ex. 3F/6, 6F/5, 10F/53).
These opinions are also consistent the records showing the
claimant’s history of problems interacting with others at work and
her family (Ex. 3F/1-2, 15, 21, 6F/7, 30, Hearing Testimony).
AR 25 (emphasis added).
As to Plaintiff’s interacting with others, the ALJ found:
the claimant has a moderate limitation. Here, the claimant alleged
that she has difficulty getting along with others and dealing
appropriately with authority (Ex. 7E/6-7). The claimant also
reported she could not go out alone (Ex. 7E/4), but later reported
she did not need anyone to accompany her when she went places
(Ex. 7E/5). In addition, the claimant reported to being able to shop,
take public transportation, and spend time with others (Ex. 7E/45, 6F/10, 22). The claimant further reported challenges at her
previous employment, responding with violence to criticism from
others, and always feeling like someone is trying to hurt her and
wanting to see her fail (Ex. 7E/7, 3F/21, Hearing Testimony).
Finally, the medical evidence shows that the claimant was
described as pleasant and cooperative and appeared comfortable
during appointments (Ex. 3F/19, 9F/6, 10F/41). Thus, the
undersigned finds a moderate limitation in this area.
Id. at 22 (emphasis added).
The DICOT’s application here.
The ALJ determined Plaintiff could perform her previous jobs of “fastfood worker” and maid/housekeeper as they were customarily performed. Id.
at 48-51. With respect to Plaintiff’s arguments, the DICOT provides
information on the requirements of various jobs including a description of what
a person does in performing a particular job. The DICOT also provides a more
general description of various components of the job worker functions in
relation to “Data,” “People,” and “Things.” The worker function of “People”
describes the degree of interaction with other people and receives a rating
using an 8-point scale with 8 being the least interaction and 0 being the most
interaction. The job of fast-food worker earned a 7 for the “People” function,
with 8 being the least interaction with people. DICOT 311.472-010, 1991 WL
672682, at *1, and noted that “Serving” was “Significant.” The job is also
unskilled with a reasoning level of two, which requires the ability to “[a]pply
commonsense understanding” and “carry out detailed but uninvolved written
or oral instructions.” Id. As the Commissioner argues, brief and minimal social
interaction is a component of this job. Doc. 22, at 14.
The DICOT job description for housekeeper/cleaner mentions no contact
with the general public, beyond “render[ing] personal assistance to patrons.”
DICOT 323.687-014, 1991 WL 672783, at *1. The DICOT description reads:
Cleans rooms and halls in commercial establishments, such as
hotels, restaurants, clubs, beauty parlors, and dormitories,
performing any combination of following duties: Sorts, counts,
folds, marks, or carries linens. Makes beds. Replenishes supplies,
such as drinking glasses and writing supplies. Checks wraps and
renders personal assistance to patrons. Moves furniture, hangs
drapes, and rolls carpets. Performs other duties as described under
CLEANER (any industry) I Master Title. May be designated
according to type of establishment cleaned as Beauty Parlor
Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according
to area cleaned as Sleeping Room Cleaner (hotel & rest.).
Id. (emphasis added). As the Commissioner points out, the housekeeper might
exchange pleasantries with a guest, so the personal assistance to patrons is in
the context of cleaning rooms and halls and restocking rooms. This job lists the
interaction with People at an 8, and that “Taking instructions-Helping:” is “Not
Significant.” Id.; see Lane v. Colvin, 643 F. App’x 766, 770 n.1 (10th Cir. 2016)
(a DICOT entry that describes the amount of “Taking Instructions” required
as “Not Significant” is consistent with “superficial contact with supervisors and
co-workers”). The housekeeper/cleaner job is unskilled with a reasoning level
Substantial evidence supports the ALJ’s decision.
Plaintiff accurately depicts Dr. Lindsay’s and Dr. Drake’s opinions. Doc.
18, at 3-4. Dr. Lindsay noted Plaintiff had “difficulty with interpersonal
relations,” “[w]ould perform better in jobs with limited requirements to
interact with coworkers,” “would not interact well with the public” and could
“carry out simple instructions.” Id. at 3 (quoting AR 64). The ALJ found Dr.
Drake made near identical conclusions. AR 25. Plaintiff also cites her hearing
testimony, where she testified she “just lashes out” when she is “off [her]
meds.” Doc. 18, at 5 (quoting AR 41-42). She described threatening her
manager at a fast-food job, and throwing a hamburger at a colleague at another
job. AR 41-42.
Plaintiff argues the ALJ’s RFC assessment neglected to include
limitations to simple and some complex tasks, or to interaction with coworkers,
supervisors, and the public. Doc. 18, at 7-9. Similarly, she maintains, she
declined to include these in the hypothetical questions he posed to the
vocational expert. Id. at 7.
Plaintiff contends that Drs. Lindsay and Drake required Plaintiff to
work alone and with no interaction with the public. She argues that the fastfood worker job required dealing with people at a “significant” level and the
housekeeper job required giving personal assistance to patrons and take
instructions/helping. Id. at 8. She also questions whether giving assistance to
patrons exceeds the RFC’s superficial interaction with the public limitation.
Id. at 8-9.
Plaintiff’s arguments fail. In considering her mental impairments, the
ALJ considered Plaintiff’s medical history and her testimony. AR 22. He found
moderate limitations in Plaintiff’s ability to interact with others and in
concentrating, persisting, or maintaining pace. Id. He found mild limitations
in her ability to understand, remember, or apply information and in her ability
to adapt or manage herself. Id. at 21-22. He also found that Plaintiff
“participates in medication management, reporting stable moods and being
satisfied with her current medications[,] suggest[ing] that her medications
have been relatively effective in controlling [her] symptoms.” Id. at 24 (internal
citations omitted). Plaintiff also testified she does not get violent when she is
adhering to her medical regimen. Id. at 40.3 The ALJ found Plaintiff’s
subjective complaints “not entirely consistent” with the medical evidence of
record, and thus discounted them. Id. at 24. Plaintiff does not challenge this
In crafting the RFC assessment, the ALJ considered the entire record.
Id. at 23; see also Wall, 561 F.3d at 1070 (explaining “[w]here, as here, the ALJ
indicates he has considered all the evidence our practice is to take the ALJ at
his word” (citation and internal alterations omitted)). The ALJ cited Plaintiff’s
mental health medical history, noting her medical visits “generally” show a
normal mood, fair insight, and judgment. AR 24. And she reported being
satisfied with her current medication, and reported stable moods when in
medication management, “suggest[ing] that her medications have been
relatively effective in controlling [her] symptoms.” Id. And, both doctors
indicated she could work with “normal supervision” and mostly alone. Id. at
As noted, the fast-food worker job does have significant serving of people,
but rates the second-lowest “People” score over all. DICOT 311.472-010, 1991
WL 672682, at *1. And the maid/housekeeper has the lowest possible “People”
rating. DICOT 323.687-014, 1991 WL 672783, at *1.
The ALJ relied on the vocational expert’s testimony, which the expert
testified was consistent with the DICOT. Id. at 25, 48-49. As to Plaintiff’s
argument about the ALJ’s failure to include Plaintiff’s limitations in
questioning the vocational expert, the ALJ’s hypothetical included a limitation
to superficial interaction with the public. Id. at 49. In response, the vocational
expert stated Plaintiff could perform both her previous jobs of fast-food worker
and maid/housekeeper, with possible restrictions, given her overhead reaching
limitation. Id. The vocational expert “testif[ied] from the [DICOT]” and would
alert the ALJ to any differences. Id. at 48. He identified none. Id. at 48-51.
Plaintiff’s hearing counsel did not delve further into the issues Plaintiff now
raises. Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008) (“[T]he ALJ
should ordinarily be entitled to rely on the claimant’s counsel to structure and
present claimant’s case in a way that the claimant’s claims are adequately
explored.”) (citation omitted). Substantial evidence supports the superficial
And both of the jobs the vocational expert identified are unskilled. This
means they involve primarily working with objects or things, not people. See
20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.00(g) (“[T]he primary work functions
in most unskilled occupations relate to working with things (rather than data
or people).”); SSR 85-15, 1985 WL 56857, at *4 (1985) (stating that unskilled
jobs “ordinarily involve dealing primarily with objects, rather than with data
or people”); Nelson v. Colvin, 655 Fed. Appx. 626, 629 (10th Cir. 2006) (“Even
though [the state agency psychologist] noted marked limitations in [the
claimant’s] ability to . . . interact appropriately with the public, unskilled work
does not require these abilities[.]”). Substantial evidence supports the ALJ’s
conclusions with respect to Plaintiff’s ability to engage in superficial
interaction with the public.
Finally, Plaintiff argues, without much follow-up, that the ALJ omitted
her limitation to simple and some complex tasks from the RFC assessment and
in his questioning of the vocational expert. Doc. 18, at 7. As noted, the two jobs
are unskilled. As the ALJ’s hypothetical posed, Plaintiff has an eleventh-grade
education. AR 49. That places her into the “limited education” category. See 20
C.F.R. § 416.964(b)(3). Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow one to do most of the
more complex job duties needed in semi-skilled or skilled jobs. Id. The ALJ
found only mild limitation in the ability to understand, remember, or apply
information, and that she could take instructions from healthcare providers,
and had fair insight and judgment. AR 21-22. Substantial evidence supports
the ALJ’s conclusion Plaintiff could perform the identified unskilled jobs.
Substantial evidence supports the ALJ’s RFC assessment and his
findings. See Lately v. Colvin, 560 F. App’x 751, 755 (10th Cir. 2014) (holding
substantial evidence supported the ALJ’s decision where “the ALJ asked the
vocational expert  whether [plaintiff] could perform her past relevant work
with her restrictions, and the [vocational expert] indicated that she could;” the
vocational expert also “specifically stated that these jobs comported with the
descriptions contained in the D[IC]OT”).
Based on the above, the Court affirms the Commissioner’s decision.
ENTERED this 27th day of April, 2021.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?