Reynolds v. Colvin
MEMORANDUM DECISION AND ORDER - It is Ordered that the decision of the Commissioner is Affirmed. Signed by Magistrate Judge Brooke C. Wells on 3/9/2018. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEPHANIE R. REYNOLDS,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM DECISION AND
ORDER AFFIRMING THE
DECISION DENYING DISABILITY
BENEFITS TO PLAINTIFF
Case No. 2:16-cv-01210-BCW
Magistrate Judge Brooke C. Wells
Plaintiff, under 42 U.S.C. § 405(g), seeks judicial review of the decision of the Acting
Commissioner of Social Security (Commissioner) denying her claim for disability insurance
benefits (DIB) under Title II of the Social Security Act (the Act). After careful review of the
entire record, the parties’ briefs, and arguments presented at a hearing held on February 23,
2018, the undersigned concludes the Commissioner’s decision is supported by substantial
evidence and free of harmful legal error and is, therefore, AFFIRMED.
This Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation omitted). The Court may neither “reweigh the evidence [n]or
substitute [its] judgment for the [ALJ’s].” Id. (citation omitted). Where the evidence as a whole
can support either the agency’s decision or an award of benefits, the agency’s decision must be
affirmed. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
In this case, Plaintiff was 46 years old in September 2013, when she claimed disability
based on arthritis, chronic pain, sleep apnea, depression, anxiety, and attention deficit
hyperactivity disorder (ADHD) (Administrative Transcript (“Tr.”) 153, 182). She completed the
11th grade and had past relevant work as a warehouse worker (Tr. 183-84). In evaluating her
case, the ALJ followed the familiar five-step sequential evaluation process (Tr. 17-30). See
generally 20 C.F.R. § 404.1520(a)(4). The ALJ found that Plaintiff had the severe impairments
of rheumatoid arthritis, degenerative disc disease, chondromalacia patella, obstructive sleep
apnea, affective disorder, ADHD, and anxiety disorder, but that her impairments did not meet or
equal the severity of a listed impairment (Tr. 19-22). The ALJ then found Plaintiff retained the
residual functional capacity (RFC) to perform a restricted range of unskilled light work (Tr.
22-28). Considering this RFC, the ALJ determined that Plaintiff was capable of performing
work existing in significant numbers in the national economy (Tr. 28-30). The ALJ thus
concluded that Plaintiff had failed to establish disability under the standards of the Act (Tr. 30).
The ALJ reasonably considered Plaintiff’s mental and physical impairments in
assessing her RFC for unskilled light work
Plaintiff first asserts the ALJ “erred by not properly considering all of [her] mental and
physical impairments” (Plaintiff’s Brief (“Pl. Br.”) 10). Specifically, Plaintiff challenges the
ALJ’s evaluation of her rheumatoid arthritis, peripheral neuropathy, sleep apnea, and mental
impairments (id. at 10-15). The Commissioner, however, argues that the record did not support
any additional limitations related to Plaintiff’s arthritis, peripheral neuropathy, sleep apnea, or
mental impairments, and that the ALJ reasonably considered all of her impairments in assessing
her RFC (Defendant’s Brief (“Def. Br.”) 8).
For example, Plaintiff complains the ALJ’s RFC “does not include significant
manipulative limitations” to account for her rheumatoid arthritis (Pl. Br. at 11). However, the
Court finds that the majority of the medical evidence and medical source opinions support the
ALJ’s determination that Plaintiff remained able to frequently handle and finger despite her
arthritis (Tr. 22). Rheumatologist Dr. Lundberg often noted that Plaintiff’s hands and wrists
looked normal and she showed “full” fist formation (Tr. 519, 571, 681, 688, 692, 696).
Plaintiff’s primary care physician, Dr. Lundsberg, opined that Plaintiff could perform both fine
and gross manipulation frequently (Tr. 553-55). And reviewing state agency physicians
Drs. Rothstein and Huebner opined that Plaintiff would not have any manipulative limitations
whatsoever (Tr. 79, 93). Based on this record, the ALJ reasonably concluded that Plaintiff
retained the ability to frequently handle and finger. See 20 C.F.R. § 404.1546(c) (an ALJ is
responsible for assessing RFC); Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (“[T]he
ALJ, not a physician, is charged with determining a claimant’s RFC from the medical record.”).
Plaintiff next alleges the ALJ “erroneously found [her] peripheral neuropathy to be a
‘non-severe impairment’” (Pl. Br. 12). A severe impairment, however, is one that “significantly
limits” an individual’s physical or mental ability to perform basic work activities. 20 C.F.R.
§ 404.1520(c). Here, the Court finds little evidence demonstrating that Plaintiff’s peripheral
neuropathy “significantly” limited her ability to perform basic work activities. Instead, an EMG
study showed she retained intact sensation to light touch, her nerve conduction studies were all
normal, and there was “no electrodiagnostic evidence of a . . . neuropathy . . . in either lower
extremity” (Tr. 282-84). And while she complained of numbness in the soles of her feet on
occasion, her physical examination actually revealed that her neurological examination was
normal with “light touch intact on soles” (Tr. 601). Further, physician assistant (“PA”) Johnson,
the only treatment provider to expressly assign limitations based on Plaintiff’s peripheral
neuropathy, opined that Plaintiff remained able to stand for four hours at one time and up to six
hours in a workday, which was consistent with the ALJ’s RFC assessment (Tr. 548-49). Thus,
Plaintiff has failed to support her claims that peripheral neuropathy would “significantly limit”
her ability to perform basic work activities, and the Court concludes the ALJ reasonably
determined that this was not a severe impairment. See 20 C.F.R. § 404.1520(c); Hawkins v.
Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (at step two, a claimant has the burden to
“demonstrate an impairment or combination of impairments that significantly limits the
claimant’s ability to do basic work activity.” (citing 20 C.F.R. § 404.1520(c))).
Plaintiff also complains the ALJ did not account for her sleep apnea and related fatigue in
assessing her RFC (Pl. Br. 13). However, the ALJ included limitations to account for Plaintiff’s
mental impairments, including that she could only make “simple work-related judgments and
decisions,” could “understand, remember, and carry out only short and simple instructions,” and
could perform “goal-oriented work but not fast-paced work” (Tr. 22). Plaintiff further argues
that three of her doctors opined she would have “at least moderate to severe fatigue and malaise
throughout the day” (Pl. Br. 13 (citing Tr. 547-49, 553-55, 568-70)). However, Dr. Lundberg,
Dr. Lundsberg and PA Johnson actually opined that Plaintiff’s fatigue and malaise would be no
more than moderate (Tr. 548, 554, 569). And Dr. Lundsberg explicitly opined that Plaintiff’s
mental limitations generally did not preclude her from performance of any aspect of a job, and
that she would only be precluded for five percent of a work day in the area of maintaining
attention and concentration (Tr. 550-51). He also did not believe that Plaintiff was unable to
obtain and retain work because of her medical impairments and limitations (Tr. 552). Therefore,
the Court concludes that Plaintiff has failed to show that her sleep apnea resulted in any mental
limitations beyond those already assessed by the ALJ.
Plaintiff next asserts the ALJ “made contradictory findings regarding the severity of [her]
mental impairments” (Pl. Br. 14-15). Plaintiff appears to be asserting that because the ALJ
found that she had moderate difficulties in concentration, persistence, or pace at step three of the
sequential evaluation process, the ALJ was required to include other, greater mental limitations
in assessing Plaintiff’s RFC. However, as discussed above, the ALJ limited Plaintiff to only
“simple work-related judgments and decisions,” understanding, remembering, and carrying out
“only short and simple instructions,” and performing “goal-oriented work but not fast-paced
work” (Tr. 22). This finding is consistent with the ALJ’s step three finding. As the
Commissioner notes, in assessing Plaintiff with “moderate” limitations in concentration,
persistence, or pace, the ALJ expressly stated that these limitations were “not a residual
functional capacity assessment but are used to rate the severity of mental impairments at steps 2
and 3 of the sequential evaluation process” (Tr. 22). Further, the ALJ noted that, despite these
moderate limitations, Plaintiff remained able to manage her own finances, organize her
medication, and follow simple instructions (Tr. 21). The ALJ therefore reasonably concluded
that Plaintiff was able to maintain focus, attention, and concentration “sufficiently long enough
to permit the timely and appropriate completion of tasks commonly found in work settings”
(Tr. 21). See Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (rejecting Plaintiff’s
argument that a limitation to unskilled work cannot accommodate severe mental impairments:
“There may be cases in which an ALJ’s limitation to ‘unskilled’ work does not adequately
address a claimant’s mental limitations. But in this case, we conclude that limiting the plaintiff
to an SVP of only one or two, adequately took into account his moderate limitations in
concentration, persistence, and pace.” (internal citation omitted)); Bales v. Colvin, 576 F. App’x
792, 798 (10th Cir. 2014) (unpublished) (affirming the ALJ’s decision that Plaintiff was capable
of unskilled work despite the ALJ’s finding “of a moderate limitation in concentration,
persistence, or pace at step three”). Thus, the Court finds the ALJ reasonably considered
Plaintiff’s mental and physical impairments in assessing her RFC for unskilled light work and
Plaintiff has failed to demonstrate that any additional limitations were warranted.
The ALJ reasonably evaluated the medical source opinions
Plaintiff next asserts the ALJ did not appropriately evaluate the medical source opinions
(Pl. Br. 15-20). The Commissioner argues that the ALJ reasonably evaluated all of the medical
source opinions, and assessed an RFC that took these opinions into consideration (Def. Br. 1319). The Court finds Plaintiff’s claims to be without merit.
The ALJ in this case was faced with several differing medical opinions from treating and
reviewing sources regarding Plaintiff’s physical and mental abilities. Here, the ALJ weighed
each of these opinions and determined that Plaintiff retained the RFC to perform a restricted
range of light work, after finding that she was slightly more limited than indicated by the
reviewing physicians, but less limited than indicated by her treating physicians. The Court
concludes that the ALJ’s evaluation of the medical source opinions was reasonable and
supported by substantial evidence in the record.
First, the ALJ considered the opinion of primary care physician Dr. Lundsberg that
Plaintiff could work four to six hours per day; stand four hours per day; lift five to 10 pounds
frequently; and frequently manipulate with her hands (Tr. 27; see Tr. 550-55). The ALJ
concluded this opinion was entitled to little weight (although portions of the ALJ’s RFC
assessment were consistent with the opinion, including that Plaintiff could frequently handle and
finger) because it was inconsistent with the objective medical evidence and appeared to rely
heavily on Plaintiff’s subjective complaints (Tr. 27). The ALJ cited evidence inconsistent with
Dr. Lundsberg’s opinion, including the normal results from Plaintiff’s nerve conduction study;
physical examinations showing her joint motion was generally normal and that she had no
swelling in her knees, ankles, or feet; her normal neurological examinations; the fact that she
retained generally normal range of motion in her spine; her gait and straight-leg raising tests
were normal; and that Plaintiff often reported her pain was effectively controlled with
medication (Tr. 22-26; see Tr. 491-92, 510, 514, 519, 531, 533, 556-57, 559, 601, 641, 645, 66769, 671-73, 676-77, 692, 696). See Endriss v. Astrue, 506 F. App’x 772, 777 (10th Cir. 2012)
(unpublished) (“The ALJ set forth a summary of the relevant objective medical evidence earlier
in his decision and he is not required to continue to recite the same evidence again in rejecting
Dr. Wright’s opinion.”).
Based on the lack of supporting clinical findings, the Court finds the ALJ reasonably
concluded that many of the limitations assigned by Dr. Lundsberg were based on Plaintiff’s
statements instead of the objective medical evidence. See 20 C.F.R. § 404.1527(c)(4) (an ALJ
must consider whether an opinion is consistent with the record as a whole); Wilson v. Astrue, 602
F.3d 1136, 1147 (10th Cir. 2010) (rejecting the claimant’s argument that the ALJ’s statement
that the limitations noted in Dr. Smith’s earlier work release “appear[ed] to be based on [Ms.
Wilson’s] subjective complaints,” “was impermissible speculation”: “It appears that these
statements were merely referencing the absence of objective medically testable physical
impairments, not concluding that such an absence was dispositive.”).
The ALJ next evaluated the opinion of rheumatologist Dr. Lundberg, who concluded that
Plaintiff could sit, stand, or work for two to four hours per day; frequently lift five to 10 pounds;
and occasionally manipulate (Tr. 27; see Tr. 569-70). The ALJ again determined that this
opinion was inconsistent with the objective medical evidence showing that Plaintiff’s physical
examinations were generally normal or unremarkable as discussed above (Tr. 27; see Tr. 491-92,
510, 514, 519, 531, 533, 556-57, 559, 601, 641, 645, 667-69, 671-73, 676-77, 692, 696). The
ALJ also noted that this opinion “relie[d] heavily on [Plaintiff’s] subjective complaints” (Tr. 27).
Dr. Lundberg explicitly admitted that the “abilities” he assessed in the opinion were “based on
patients [sic] report” (Tr. 570). The Court concludes the ALJ provided valid reasons for giving
less weight to Dr. Lundberg’s opinion. See 20 C.F.R. § 404.1527(c)(4); Raymond, 621 F.3d at
1272; Wilson, 602 F.3d at 1147.
The ALJ also evaluated PA Johnson’s opinion that Plaintiff could work six to eight hours
intermittently; could sit or stand for six hours in an eight-hour workday; and could lift up to 10
pounds frequently but could never perform any manipulation with her hands (Tr. 27; see Tr. 54849). The ALJ gave this opinion little weight, concluding the opinion was inconsistent with the
record as a whole, which generally failed to document rheumatoid arthritis flares, as relied upon
by PA Johnson (Tr. 28; see Tr. 510-17, 531-45, 667-69, 671-73, 676-77). The ALJ also noted
that while PA Johnson stated Plaintiff was completely incapable of using her hands, this was
inconsistent with the majority of her physical examinations, which demonstrated that her hands
and wrists were often normal with no swelling or tenderness (Tr. 28; see Tr. 519, 571, 692, 696).
Finally, the ALJ noted that there was “no indication in the file that [Plaintiff] require[d]
assistance with feeding herself, dressing, toileting, etc.,” which would be reasonable to expect if
Plaintiff were completely unable to perform any manipulation with her hands, as PA Johnson
opined (Tr. 28; see Tr. 195, 222 (failing to list any difficulties with personal care), 199 (failing to
list any difficulties with “using hands”)). The Court finds the ALJ provided valid reasons
grounded in record evidence for giving less weight to PA Johnson’s opinion. See 20 C.F.R.
§ 404.1527(c)(4); Newbold v. Colvin, 718 F.3d 1257, 1266 (10th Cir. 2013) (affirming the ALJ’s
decision discounting the treating physician’s opinion that the claimant had extreme limitations
based on the claimant’s daily activities, including that she was able to “car[e] for her own
personal needs; do [ ] household chores, i.e., dishes, vacuuming; cooking; texting friends; using a
computer; driving; grocery shopping; reading; watching television; visiting with friends;
attending church on a weekly basis; and, attending church activities one night a week”).
Finally, reviewing state agency physicians Drs. Thobe and Rothstein, opined that Plaintiff
retained physical abilities consistent with light work (Tr. 78-79, 93). Reviewing state agency
psychologists Drs. Huebner and Berkowitz, opined that Plaintiff remained capable of two-tothree step work (Tr. 80, 94-95). The ALJ concluded these opinions were entitled to great weight
(Tr. 26-27), although the ALJ assessed a slightly more restrictive RFC than assigned by these
physicians and psychologists (Tr. 22). The Court finds that, because these opinions were
consistent with the record as a whole, which demonstrated that Plaintiff’s mental and physical
impairments were not as severe as she claimed, they provided substantial evidence in support of
the ALJ’s decision. See 20 C.F.R. § 404.1527(e)(2)(i) (state agency medical consultants “are
highly qualified physicians, psychologists, and other medical specialists who are also experts in
Social Security disability evaluation”); Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2008)
(a non-examining physician is an acceptable medical source, whose opinion the ALJ is entitled
The ALJ’s step five finding was supported by substantial evidence
Plaintiff next argues the ALJ’s step-five finding—that she could perform jobs that existed
in significant numbers in the national economy given her RFC—was not supported by
substantial evidence (Pl. Br. 20-24). Defendant responds that the ALJ’s hypothetical question
was consistent with his RFC assessment, and the vocational expert identified jobs that such an
individual could perform (Def. Br. 19). Defendant also asserts there was no apparent conflict
between the vocational expert’s testimony and the Dictionary of Occupational Titles (DOT)
(Def. Br. 19-21). The Court concludes the ALJ’s step five finding was supported by substantial
Here, the ALJ posed a hypothetical question that reflected all the limitations he found
credible and ultimately included in his RFC assessment (compare Tr. 64 with Tr. 22). In
response, the vocational expert testified that such an individual could perform the sedentary
unskilled job of call out operator and the light unskilled jobs of office helper and self-service
operator (Tr. 65). Because the hypothetical posed to the vocational expert comprehensively
described Plaintiff’s limitations, the Court finds the ALJ did not err in relying on the vocational
expert’s testimony to find that Plaintiff could perform other work that existed in significant
numbers in the national economy. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000).
Plaintiff, however, argues the ALJ erred because he failed to resolve a conflict between
the expert’s testimony and the DOT (Pl. Br. 21). Plaintiff essentially argues that the expert’s
testimony—based on the ALJ’s RFC limitation to simple work—conflicted with the DOT job
descriptions for self-service operator and call out operator, because the DOT describes these jobs
as having a General Educational Development (GED) reasoning level of three, which is defined
as “[a]pply[ing] commonsense understanding to carry out instructions furnished in written, oral,
or diagrammatic form. Deal[ing] with problems involving several concrete variables in or from
standardized situations.” See Dep’t of Labor, DOT, App. C, § III (4th ed. 1991), available at
1991 WL 688702.
The Court finds that Plaintiff’s argument rests on a common misunderstanding of the
general educational development (GED) levels in the DOT. Per the DOT, GED “embraces those
aspects of education (formal and informal) which are required of the worker for satisfactory job
performance.” DOT, App’x C, 1991 WL 688702 (emphasis added). “This is education of a
general nature which does not have a recognized, fairly specific occupational objective.
Ordinarily, such education is obtained in elementary school, high school, or college. However,
it may be obtained from experience and self-study.” Id. (emphasis added).
However, in a recent series of unpublished decisions, the Tenth Circuit has found that
GED reasoning levels are unrelated to the mental requirements of a job. See Anderson v. Colvin,
514 F. App’x 756, 764 (10th Cir. 2013) (unpublished) (“GED does not describe specific mental
or skill requirements of a particular job, but rather describes the general educational background
that makes an individual suitable for the job, broken into the divisions of Reasoning
Development, Mathematical Development and Language Development.”); Mounts v. Astrue,
479 F. App’x 860, 868 (10th Cir. 2012) (unpublished) (“Job descriptions in the [DOT] contain
several elements required to perform a specific job, including a claimant’s GED, which is the
level of formal and informal education required to perform a specific job.”); but see Hackett v.
Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). The Court agrees with this recent line of
However, the Court finds that even the older case law that equates GED levels with
mental requirements of certain jobs does not support Plaintiff’s position. This is because one of
the occupations identified by the vocational expert required only a GED reasoning level of two.
See Office Helper, DOT No. 239.567-010, 1991 WL 672232. And the ALJ limited Plaintiff to
simple tasks and simple work related decisions (Tr. 22). The Tenth Circuit has repeatedly held
that reasoning level two is consistent with an RFC limitation to simple tasks. See Hackett, 395
F.3d at 1176; Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (unpublished); see also
Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (even assuming two of three jobs
relied on by the ALJ were erroneous, the court affirms the ALJ’s decision where substantial
evidence showed the claimant could do the third job, and the job existed in significant numbers
in the national economy). Thus, the Court affirms the ALJ’s finding at step five.
The ALJ reasonably evaluated Plaintiff’s symptom testimony
Finally, Plaintiff alleges the ALJ erred in evaluating her subjective complaints (Pl. Br.
24-26). Defendant responds that the ALJ gave valid reasons for finding that Plaintiff’s extreme
complaints were not consistent with the record (Def. Br. 22-23). The Court finds the ALJ’s
evaluation of Plaintiff’s testimony should be affirmed.
Here, the ALJ first relied on the objective medical evidence, which, as discussed above,
showed that Plaintiff’s nerve conduction study was normal; her joint motion was generally
normal; she had no swelling in her knees, ankles, or feet; her normal neurological examinations;
she retained generally normal range of motion in her spine; her gait and straight-leg raising tests
were normal; and she often reported that her pain was effectively controlled with medication (Tr.
22-26; see Tr. 491-92, 510, 514, 519, 531, 533, 556-57, 559, 601, 641, 645, 667-69, 671-73, 67677, 692, 696). Based on this evidence, the ALJ reasonably concludes that the “objective findings
fail[ed] to provide strong support for [Plaintiff’s] allegations of disabling symptoms and
limitations” (Tr. 23). See 20 C.F.R. § 404.1529(c)(4) (“we will evaluate your statements in
relation to the objective medical evidence”); Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.
1988) (upholding an ALJ’s credibility finding where, despite his complaints of pain, the claimant
demonstrated a satisfactory range of motion for the joints in question); Megginson v. Astrue, 489
F. App’x 260, 263 (10th Cir. 2012) (unpublished) (the fact that clinical examinations routinely
showed a normal gait and full 5/5 muscle strength, grip strength, and range of motion in his right
arm undermined the claimant’s allegations).
The ALJ also relied on Plaintiff’s activities of daily living, finding that they were
“inconsistent with [her] allegations of disabling symptoms and limitations” (Tr. 23). For
instance, the ALJ noted that Plaintiff remained able to complete household chores, including
laundry and cleaning, she had no problems with personal care, she was able to use the computer,
prepare meals, drive, go out alone, go shopping, socialize with friends and family, and attend
church services (Tr. 21; see Tr. 194-200). The record also shows that Plaintiff was able to work
at least part-time during the same period of time she alleged that she was completely unable to
work (Tr. 556 (“working through a temp service”), 637 (“working part time which does not
stress her back”), 657 (“working part time”), 661 (“working part time”)). The Court finds that
Plaintiff’s relatively normal lifestyle provided another valid reason for the ALJ to give less
weight to her testimony of disabling limitations. See 20 C.F.R. § 404.1529(c)(3)(i) (an ALJ must
consider a claimant’s activities); Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010) (ALJ
reasonably found a claimant’s description of her daily activities did not indicate significant
limitations, where the claimant could care for herself, her home, and her children, and also drive,
shop, handle finances, garden, visit friends, and go out to eat); Shepherd v. Apfel, 184 F.3d 1196,
1202 (10th Cir. 1999) (evidence a claimant did mechanic work even after the alleged onset of
disability supported a finding of nondisability).
Thus, based on the foregoing, the Court finds the ALJ provided valid reasons for
discounting Plaintiff’s testimony, and the ALJ’s decision is affirmed.
Because the ALJ’s decision is supported by substantial evidence and is free of harmful
legal error, it is AFFIRMED. Judgment shall be entered in accordance with Fed. R. Civ. P. 58,
consistent with the U.S. Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292, 296-304
DATED this 9 March 2018.
Brooke C. Wells
United States Magistrate Judge
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