Hibbert v. Astrue

Filing 22

MEMORANDUM DECISION affirming the decision of the Commissioner of Social Security. Signed by Magistrate Judge Paul M. Warner on 03/14/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SHAMRA HIBBERT,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:10-cv-833-PMW

CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Shamra Hibbert’s (“Plaintiff”) appeal of the Commissioner’s final
decision denying Plaintiff’s claims for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, see id. §§ 1381-1383f. After careful consideration of the
written briefs and the complete record, the court has determined that oral argument is
unnecessary in this case.

1

On February 14, 2013, Carolyn W. Colvin (“Commissioner”) became the Acting
Commissioner of Social Security. Accordingly, she has been automatically substituted for
Michael J. Astrue as the defendant in this action. See 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”); Fed.
R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.”).

BACKGROUND
On December 31, 2008, Plaintiff applied for DIB and SSI, alleging disability beginning
on March 31, 2007.2 Plaintiff’s applications were denied initially and upon reconsideration.3 On
July 25, 2009, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”),4 and
that hearing was held on December 1, 2009.5 On December 11, 2009, the ALJ issued a written
decision denying Plaintiff’s claims for DIB and SSI.6 On July 19, 2010, the Appeals Council
denied Plaintiff’s request for review,7 making the ALJ’s decision the Commissioner’s final
decision for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R.
§§ 404.981, 416.1481.
On August 25, 2010, Plaintiff filed her complaint in this case, which was assigned to
District Judge Clark Waddoups.8 Plaintiff filed an amended complaint on September 2, 2010.9

2

See docket no. 7, Administrative Record (“Tr.

3

See Tr. 87-88, 90-91.

4

See Tr. 119-120.

5

See Tr. 38-84.

6

See Tr. 13-37.

7

See Tr. 1-5.

8

See docket no. 3.

9

See docket no. 5.
2

”) 169-181.

The Commissioner filed her answer on October 29, 2010,10 and the court received the
Administrative Record the same day.11
On November 23, 2010, both parties consented to having a United States Magistrate
Judge conduct all proceedings in the case, including entry of final judgment, with appeal to the
United States Court of Appeals for the Tenth Circuit.12 Consequently, the case was reassigned to
then Magistrate Judge David Nuffer pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal
Rules of Civil Procedure.13
Plaintiff filed her opening brief on January 7, 2011.14 The Commissioner filed her answer
brief on February 4, 2011.15 Plaintiff filed her reply brief on February 22, 2011.16
In March 2012, Judge Nuffer became a United States District Judge. On March 26, 2012,
the case was reassigned to Judge Nuffer, this time as a newly appointed district judge.17 On May

10

See docket no. 6.

11

See docket no. 7.

12

See docket no. 11.

13

See id.

14

See docket no. 13.

15

See docket no. 14.

16

See docket no. 15.

17

See docket no. 16.
3

22, 2012, Judge Nuffer referred this case to Magistrate Judge Evelyn J. Furse pursuant to 28
U.S.C. § 636(b)(1)(B).18
On June 18, 2012, the parties again consented to having a United States Magistrate Judge
conduct all proceedings in the case, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit.19 Consequently, the case was reassigned to Judge
Furse pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure.20 On
November 6, 2012, Judge Furse recused herself from presiding over this case, and it was
reassigned to Magistrate Judge Paul M. Warner.21
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “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, 489 F.3d at 1084 (quotations and citation
omitted). “In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor
18

See docket no. 17.

19

See docket no. 19.

20

See id.

21

See docket no. 20.
4

substitute [its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006) (quotations and citation omitted). “The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a
determination can be made at any one of the steps that a claimant is or is not disabled, the
subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
§§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
5

benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At
the fourth step, the claimant must show that the impairment prevents performance of his “past
relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “If the claimant is able to
perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. If, however, the
claimant is not able to perform his previous work, he “has met his burden of proof, establishing a
prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If it is determined that the claimant “can make an
adjustment to other work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is not disabled.
If, on the other hand, it is determined that the claimant “cannot make an adjustment to other
work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.
ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred in evaluating: (1) the medical opinion evidence, (2) Plaintiff’s
credibility, and (3) Plaintiff’s RFC. The court will address those arguments in turn.

6

I. Medical Opinion Evidence
Under the relevant regulations, an ALJ is required to consider certain factors when
determining the weight to be assigned to a medical opinion. See 20 C.F.R. §§ 404.1527(c),
416.927(c). An ALJ is not required to discuss every factor set forth in the relevant regulations.
See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that when an ALJ does not
discuss every factor, it “does not prevent this court from according his decision meaningful
review”). As with other evidentiary matters, when an ALJ is considering medical opinion
evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies. See,
e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d
1244, 1247 (10th Cir. 1988).
Plaintiff argues that the ALJ erred by failing to evaluate the medical opinion evidence
properly. Specifically, Plaintiff asserts that the ALJ erred by giving the greatest weight to the
opinions of Ronald Houston, Ph.D. (“Dr. Houston”), a licensed psychologist who testified at the
hearing. Plaintiff further contends that Dr. Houston’s testimony and opinions are not supported
by the record. Plaintiff also maintains that the ALJ should have given more weight to the
opinions of Dr. Kenneth Wallis, M.D. (“Dr. Wallis”).
A. Weight Assigned to Dr. Houston’s Opinions
Plaintiff argues that the ALJ erred by giving the greatest weight to the opinions of Dr.
Houston. The court disagrees. In reaching his determination about Dr. Houston’s opinions, the
ALJ relied upon proper factors. The ALJ properly relied upon the fact that Dr. Houston’s
opinions were well supported by the record. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
7

Before reaching that conclusion, the ALJ provided a specific discussion of Dr. Houston’s
opinions and the record evidence that supported them.22 The ALJ also properly relied upon the
fact that Dr. Houston was a board-certified psychologist. See 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5). Finally, the ALJ properly relied upon the fact that Dr. Houston had a specialized
knowledge of the Commissioner’s standards and rules. See 20 C.F.R. §§ 404.1527(c)(6),
416.927(c)(6).
B. Record Support for Dr. Houston’s Opinions
Plaintiff next argues that Dr. Houston’s testimony and opinions are not supported by the
record. Specifically, Plaintiff asserts that the ALJ erred by agreeing with Dr. Houston’s (1)
testimony that Plaintiff had received “no real treatment”23 for her depression, (2) assessment of
an evaluation completed by Dr. Robert Sawicki, Ph.D. (“Dr. Sawicki”), and (3) assessment of
certain records from Wasatch Mental Health.
1. Dr. Houston’s Testimony Concerning Plaintiff’s Depression
Plaintiff’s argues that the ALJ erred by relying on Dr. Houston’s testimony that Plaintiff
received “no real treatment”24 for her depression other than using Prozac. Plaintiff points out that
Plaintiff had received other treatment for her depression other than Prozac. Accordingly,
Plaintiff argues that the ALJ erred by relying on that portion of Dr. Houston’s testimony. In the

22

See docket no. 30.

23

Tr. 63.

24

Id.
8

court’s view, Plaintiff has interpreted Dr. Houston’s testimony too narrowly. While Dr. Houston
did state that Plaintiff had received “no real treatment”25 for her depression, the ALJ’s decision
demonstrates that he did not rely on a literal interpretation of that statement. Instead, his decision
shows that he relied on Dr. Houston’s testimony that Plaintiff had not received any consistent
treatment for her mental impairments.26 For these reasons, this argument fails.
2. Dr. Sawicki’s Evaluation
Plaintiff next contends that the ALJ erred by relying on Dr. Houston’s interpretation of an
evaluation completed by Dr. Sawicki. Specifically, Plaintiff contends that Dr. Houston
incorrectly characterized Dr. Sawicki’s evaluation as being primarily personality based. In his
testimony, Dr. Houston indicated that Dr. Sawicki’s evaluation was “more personality based”
and that the “primary emphasis” of Dr. Sawicki’s evaluation “was the personality assessment.”27
The ALJ adopted Dr. Houston’s interpretation in his opinion and concluded that Dr. Sawicki’s
findings were not well developed. Plaintiff argues that the ALJ erred in that regard because Dr.
Sawicki’s evaluation demonstrates that he completed several tests that are not aimed at assessing
personality.
This argument fails. As noted by the Commissioner, while Dr. Sawicki did perform tests
that were not personality assessments, the results of those tests were fairly normal.28 At the same
25

Id.

26

See Tr. 30, 72-73.

27

Tr. 64.

28

See Tr. 296.
9

time, Dr. Sawicki noted that “[o]f significant concern are findings of the personality
assessment.”29 Given the content of Dr. Sawicki’s evaluation and the emphasis he assigned to
the various test results, the court concludes that Dr. Houston’s interpretation of the evaluation
was reasonable. As such, the ALJ did not err by relying upon Dr. Houston’s interpretation.
Furthermore, even if Plaintiff had been able to persuade the court that Dr. Houston’s
interpretation of Dr. Sawicki’s opinions is somehow inconsistent with the record, Plaintiff has
failed to show how that would have affected the ALJ’s decision. In other words, even if
Plaintiff’s argument had been successful, she has not demonstrated harmful error. See Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally
falls upon the party attacking the agency’s determination.”); see also Fischer-Ross v. Barnhart,
431 F.3d 729, 733-34 (10th Cir. 2005) (recognizing applicability of harmless error analysis in
Social Security context).
3. Wasatch Mental Health Records
Plaintiff maintains that the ALJ erred by relying on Dr. Houston’s interpretation of certain
records from Wasatch Mental Health. Specifically, Plaintiff argues that Dr. Houston should not
have relied upon the profile contained in those records to support his statement that “[i]t’s
difficult to say”30 whether Plaintiff’s impairments met or equaled certain criteria for the listed
impairment for depression. Plaintiff contends that her argument is further supported by Dr.

29

Id.

30

Tr. 74.
10

Houston’s testimony that the profile was a “poor evaluation”31 and the ALJ’s decision to afford
the profile “very little weight.”32 For these reasons, Plaintiff asserts that the ALJ erred by relying
on Dr. Houston’s interpretation of the profile.
This argument is without merit. Plaintiff has correctly stated that Dr. Houston rated the
profile as a “poor evaluation”33 and that the ALJ gave the profile “very little weight.”34 However,
it appears from Dr. Houston’s testimony that he based his opinion on the Minnesota Multiphasic
Personality Inventory (“MMPI”) score contained within the profile, not on the profile itself. In
his testimony, Dr. Houston indicated that the MMPI scores suggested malingering and an
exaggeration of symptoms.35 Dr. Houston also testified that he viewed the evaluation as poor
because it failed to address the significance of the MMPI score.36 The ALJ agreed with Dr.
Houston’s assessment of the profile in his decision and specifically stated that the MMPI score
indicated an exaggeration of symptoms and possible malingering.37 For those reasons, the ALJ
concluded that Plaintiff’s impairments did not meet or equal certain criteria for the listed

31

Tr. 81.

32

Tr. 29.

33

Tr. 81.

34

Tr. 29.

35

See Tr. 74.

36

See Tr. 80.

37

See Tr. 30.
11

impairment for depression.38 The court is not persuaded that the ALJ committed any error by
reaching that conclusion.
To the extent that Plaintiff attempts to reargue the weight of the evidence before the ALJ
on this issue by claiming that the ALJ and Dr. Houston should have addressed or relied upon
different evidence, that tactic is futile on appeal because it is not this court’s role to reweigh the
evidence. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ’s role to weigh and resolve
evidentiary conflicts and inconsistencies. See, e.g., Rutledge, 230 F.3d at 1174; Eggleston, 851
F.2d at 1247. From an evidentiary standpoint, the only issue relevant to the court is whether
substantial evidence exists in the record to support the ALJ’s conclusions. See Oldham, 509 F.3d
at 1257 (providing that the court reviewing the ALJ’s decision reviews “only the sufficiency of
the evidence, not its weight” (emphasis omitted)).
C. Weight Assigned to Dr. Wallis’s Opinions
Plaintiff contends that the ALJ should have given more weight to the opinions of Dr.
Wallis. That argument fails. Plaintiff has failed to persuade the court that the ALJ erred in the
weight he assigned to the opinions of Dr. Wallis. In discounting Dr. Wallis’s opinions, the ALJ
properly relied upon the fact that Dr. Wallis had never examined Plaintiff. See 20 C.F.R.
§§ 404.1527(c)(1), 416.927(c)(1). The ALJ also noted that Dr. Wallis had not reviewed the
entire medical record, nor had he heard Plaintiff’s testimony. The court concludes that these
were sufficient reasons for giving less weight to the opinions of Dr. Wallis.

38

See Tr. 20-21, 30.
12

Again, to the extent that Plaintiff argues the weight of the evidence before the ALJ, the
court will not entertain such arguments on appeal. See Oldham, 509 F.3d at 1257; Madrid, 447
F.3d at 790; Rutledge, 230 F.3d at 1174; Eggleston, 851 F.2d at 1247.
II. Credibility
Plaintiff argues that the ALJ erred in evaluating the credibility of Plaintiff’s testimony. In
general, “[c]redibility determinations are peculiarly the province of the finder of fact, and [this
court] will not upset such determinations when supported by substantial evidence.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotations and citation omitted). Although credibility
determinations “should be closely and affirmatively linked to substantial evidence,” id.
(quotations and citation omitted), they “do[] not require a formalistic factor-by-factor recitation
of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Social Security Ruling (“SSR”) 96-7p clarifies the standards an ALJ must apply when
evaluating the credibility of an individual’s statements, including his or her allegations of pain.
See SSR 96-7p. In addition to the objective medical evidence, an ALJ should consider the
following factors when assessing the credibility of an individual’s statements:
1.
2.
3.
4.

5.
6.

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 (e.g., lying flat
13

7.

on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

Id.; see 20 C.F.R. §§ 404.1529(c), 416.929(c); see also Thompson v. Sullivan, 987 F.2d 1482,
1489 (10th Cir. 1993).
In this case, the ALJ considered proper factors in reaching his determination that, overall,
Plaintiff’s testimony about her disabling symptoms was not entirely credible. First, the ALJ
properly relied on the following inconsistencies between Plaintiff’s testimony and Plaintiff’s
prior statements concerning her symptoms. See SSR 96-7p (providing that an ALJ must consider
the consistency of a claimant’s statements in determining credibility). The ALJ noted that
Plaintiff testified that she quit her job at Wal-Mart because she was told that she would be fired
because of her excessive absences.39 Plaintiff testified that those absences were due to her
depression.40 However, in an evaluation completed prior to the hearing, Plaintiff reported that
she was unable to work because she was depressed and because she was caring for her sister’s

39

See Tr. 26.

40

See Tr. 49-50.
14

son.41 The ALJ concluded that Plaintiff’s omission of the latter fact from her hearing testimony
constituted an inconsistency and brought Plaintiff’s credibility into question.42
The ALJ relied also on the fact that Plaintiff’s testimony about the effectiveness of her
medications was inconsistent with other evidence in the record. See id. (providing that a strong
indication of the credibility of a claimant’s statements is their consistency with other information
in the case record). Plaintiff testified that her depression-related medications were not always
effective.43 However, the portion of the ALJ’s decision discussing Plaintiff’s medical history
shows an inconsistent pattern of complaints about her depression-related symptoms,44 which
belies Plaintiff’s testimony that her medications were not effective in treating those symptoms.
The ALJ also noted that Plaintiff’s mother had testified that Plaintiff was happy and less
depressed when she was on her medications.45

41

See Tr. 320.

42

The ALJ relies upon several other inconsistencies concerning Plaintiff’s work at Taco
Bell and her attempt to obtain a commercial driver’s license. Plaintiff correctly argues that there
are not inconsistencies in the record with respect to those two issues. However, the court
concludes that any error committed by the ALJ in that respect was harmless because he properly
relied on numerous other factors that support his credibility determination. See Shinseki, 556
U.S. at 409 (“[T]he burden of showing that an error is harmful normally falls upon the party
attacking the agency’s determination.”); see also Fischer-Ross, 431 F.3d at 733-34 (10th Cir.
2005) (recognizing applicability of harmless error analysis in Social Security context).
43

See Tr. 52.

44

See Tr. 23-25.

45

See Tr. 26.
15

The ALJ relied further on the fact that Plaintiff did not initially allege that she had back
pain that affected her ability to work, but later reported that she had back pain since the age of
seventeen and stopped working in 2008 as a result of her back pain and other symptoms.46 See
id. The ALJ concluded that such an inconsistency further undermined Plaintiff’s credibility.
Second, the ALJ properly relied upon the fact that Plaintiff’s daily activities were
inconsistent with Plaintiff’s testimony about the degree of her limitations. See 20 C.F.R.
§§ 404.1529(c)(3)(i), 416.929(c)(3)(i); SSR 96-7p. The ALJ noted that, at the same time she was
alleging disability, Plaintiff reported that she had been caring for her sister’s son and stopped
only because she was unable to pass a required background check.47
Third, the ALJ properly relied on his observations of Plaintiff at the administrative
hearing. See SSR 96-7p (providing that an ALJ may consider his or her own observations of a
claimant at an administrative hearing in making the overall evaluation of the credibility of the
claimant’s statements). Plaintiff testified that migraine headaches constituted one of her
impairments and that she experienced one every day, including the day of the administrative
hearing.48 The ALJ noted that, despite her complaints of a migraine headache, Plaintiff was able
to attend and participate in the administrative hearing, which diminished the credibility of her
complaints about her symptoms.49
46

See Tr. 201, 318.

47

See Tr. 320.

48

See Tr. 60-61.

49

See Tr. 26.
16

Finally, although not contained in the portion of the ALJ’s decision concerning
credibility, the ALJ did, as noted above, give great weight to the opinions of Dr. Houston. In his
discussion of Dr. Houston’s opinions, the ALJ specifically noted that Dr. Houston had opined
that Plaintiff was possibly malingering and was exaggerating her symptoms.50 It was proper for
the ALJ to consider those opinions in making his overall evaluation of Plaintiff’s credibility. See
id. (providing that an ALJ should consider all of the medical evidence in making credibility
evaluations, including medical opinion evidence).
The ALJ articulated sufficient reasoning and relied upon proper factors in determining
that, overall, Plaintiff’s testimony was not entirely credible. Furthermore, the court concludes
that the ALJ’s determination is “closely and affirmatively linked to substantial evidence.”
Kepler, 68 F.3d at 391 (quotations and citation omitted). Accordingly, the court concludes that
the ALJ did not err in reaching his determination about Plaintiff’s credibility.
III. RFC
Plaintiff argues that the ALJ erred in his evaluation of Plaintiff’s RFC. Specifically,
Plaintiff asserts that the ALJ’s RFC assessment is inconsistent with (A) the ALJ’s step three
determination and (B) the medical evidence. The court will address each argument in turn.

50

See Tr. 30.
17

A. Step Three Determination
Plaintiff contends that the ALJ erred in his assessment of Plaintiff’s RFC because that
assessment is inconsistent with the ALJ’s determination at step three of the sequential evaluation
process.
In evaluating the severity of mental impairments at step two of the sequential evaluation
process, the ALJ must rate a claimant’s degree of functional limitation in four broad functional
areas: activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ rates
a claimant’s degree of limitation on a five point scale: none, mild, moderate, marked, and
extreme. See 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). An ALJ uses the same ratings in
deciding at step three whether a claimant meets a listing contained in Appendix 1 of the relevant
regulations (individually, a “listing” and collectively, the “listings”). See 20 C.F.R. § 404,
Subpart P, Appendix 1, listing 12.00C. This special technique is called the psychiatric review
technique. See SSR 96-8p; see also 20 C.F.R. §§ 404.1520a, 416.920a. An ALJ’s determination
at step three does not constitute the assessment of a claimant’s RFC. See SSR 96-8p. Instead,
“[t]he mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires
a more detailed assessment by itemizing various functions contained in the broad categories
found in paragraphs B and C of the adult mental disorders listings in 12.00” of Appendix 1 of the
relevant regulations. Id.
In this case, at step 3, the ALJ determined that Plaintiff had moderate difficulty in social
functioning and moderate difficulty in her ability to maintain concentration, persistence, and
18

pace.51 In assessing Plaintiff’s RFC, the ALJ determined that Plaintiff had “mild to moderate
limitations in dealing with stress in the workplace” and “mild limitations in concentrating, use of
judgment, following detailed instructions, performing duties within a schedule, sustaining routine
work without supervision, relating to others, interacting with the general public, [and] the ability
to get along with co-workers.”52
Plaintiff maintains that those determinations are inconsistent and, therefore, that the ALJ
erred in assessing Plaintiff’s RFC. In other words, Plaintiff asserts that the ALJ’s step three
determination must “reflect and agree”53 with the ALJ’s assessment of Plaintiff’s RFC. The
court is not persuaded by that argument. As noted above, SSR 96-8p makes it clear that an
ALJ’s determination at step three does not constitute the assessment of a claimant’s RFC.
See SSR 96-8p. Indeed, according to SSR 96-8, the assessment of a claimant’s RFC is “a more
detailed assessment” than the determination made at step three. Id. Given that the analyses are
different, the court is not persuaded that an ALJ’s step three determination must necessarily agree
in every respect with an ALJ’s assessment of a claimant’s RFC. For this reason, the court
concludes that Plaintiff’s argument on this point fails.

51

See Tr. 20.

52

Tr. 22.

53

Docket no. 13 at 19.
19

B. Medical Evidence
Plaintiff asserts that the ALJ erred in his assessment of Plaintiff’s RFC because it is
inconsistent with the medical evidence. Plaintiff contends that the ALJ’s RFC assessment is not
supported by substantial evidence because Dr. Houston did not provide any opinions or support
for the limitations contained in the ALJ’s RFC assessment. Plaintiff also argues that the ALJ
failed to include the limitations expressed by Dr. Wallis. Those arguments are without merit.
“RFC assessments must be based on all of the relevant evidence in the case record.” SSR
96-8p. In addition, it is the ALJ’s responsibility to assess a claimant’s RFC. See 20 C.F.R.
§§ 404.1546, 416.946; SSR 96-5. As such, no doctor’s opinion or testimony is conclusive on the
issue of a claimant’s RFC. See SSR 96-5 (providing that some issues, such as an individual’s
RFC, “are not medical issues regarding the nature and severity of an individual’s impairment(s)
but are administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability” and that “[t]he regulations provide that the final
responsibility for deciding issues such as these is reserved to the Commissioner”). Accordingly,
as noted by the Commissioner, it is not material that the ALJ’s RFC assessment in this case is
inconsistent with any one doctor’s opinions.

20

CONCLUSION AND ORDER
The court concludes that all of Plaintiff’s arguments fail. Accordingly, IT IS HEREBY
ORDERED that the Commissioner’s decision in this case is AFFIRMED.
IT IS SO ORDERED.
DATED this 14th day of March, 2013.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

21