Vugdalic v. O'Malley

Filing 34

MEMORANDUM DECISION AND ORDER Affirming the Commissioner's Decision Denying Disability Benefits. Signed by Magistrate Judge Daphne A. Oberg on 3/5/2025. (alf)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DIJANA V.,

MEMORANDUM DECISION AND
ORDER AFFIRMING THE
COMMISSIONER’S DECISION
DENYING DISABILITY BENEFITS

Plaintiff,
v.
LELAND DUDEK, Acting Commissioner
of the Social Security Administration,

Case No. 2:24-cv-00204
Magistrate Judge Daphne A. Oberg

Defendant.

Plaintiff Dijana V. 1 brought this action for judicial review of the denial of her
application for disability insurance benefits by the Commissioner of the Social Security
Administration. 2 The Administrative Law Judge (“ALJ”) who addressed Ms. V.’s
application determined she did not qualify as disabled. 3 Ms. V. argues the ALJ erred in
evaluating Ms. V.’s history of strokes, fibromyalgia, exertional limitations, and the
medical opinion evidence. 4 Because the ALJ applied the correct legal standards and
her findings are supported by substantial evidence, the Commissioner’s decision is
affirmed. 5

1 Pursuant to best practices in the District of Utah addressing privacy concerns in

judicial opinions in certain cases, including social security cases, the plaintiff is referred
to by first name and last initial only.

2 (See Compl., Doc. No. 2.)
3 (Certified Tr. of Admin. R. (“Tr.”) 992–1020, Doc. No. 9.)
4 (See Opening Br., Doc. No. 19.)
5 The parties consented to proceed before a magistrate judge in accordance with 28

U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. No. 7.)
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STANDARD OF REVIEW
Section 405(g) of Title 42 of the United States Code provides for judicial review
of the Commissioner’s final decision. This court reviews the ALJ’s decision to
determine whether substantial evidence supports her factual findings and whether she
applied the correct legal standards. 6 “[F]ailure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that appropriate legal principles
have been followed is grounds for reversal.” 7
An ALJ’s factual findings are “conclusive if supported by substantial evidence.” 8
Although the threshold for substantial evidence is “not high,” it is “more than a mere
scintilla.” 9 Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” 10 “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence.” 11 And the court may not
reweigh the evidence or substitute its judgment for that of the ALJ. 12

6 See 42 U.S.C. § 405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
7 Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005).
8 Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (internal quotation marks omitted).
9 Id. at 103 (citation omitted).
10 Id. (citation omitted).
11 Lax, 489 F.3d at 1084 (citation omitted).
12 Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).

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APPLICABLE LAW
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” expected to result in death or last for at least twelve consecutive months. 13
An individual is considered disabled only if her impairments are so severe, she cannot
perform her past work or “any other kind of substantial gainful work.”14
In determining whether a claimant qualifies as disabled, the ALJ uses a five-step
sequential evaluation, considering whether:
1) the claimant is engaged in substantial gainful activity;
2) she has a severe medically determinable physical or mental impairment;
3) the impairment is equivalent to an impairment precluding substantial gainful
activity (listed in the appendix of the relevant disability regulation);
4) she has the residual functional capacity to perform past relevant work; and
5) she has the residual functional capacity to perform other work, considering
her age, education, and work experience. 15

13 42 U.S.C. § 423(d)(1)(A).
14 Id. § 423(d)(2)(A).
15 See 20 C.F.R. § 404.1520(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987);

Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988).
3

In the first four steps, the claimant has the burden of establishing disability. 16 At step
five, the Commissioner must show the claimant retains the ability to perform other work
in the national economy. 17
PROCEDURAL HISTORY
Ms. V. applied for disability insurance benefits, 18 alleging she became disabled
on June 24, 2017. 19 The ALJ held an administrative hearing and issued a decision in
April 2020, denying benefits. 20 Ms. V. appealed the denial to the district court, and the
court granted the Commissioner’s unopposed motion to remand the case for further
proceedings. 21 On remand, the ALJ held a second hearing and issued a new decision
in October 2023, again denying benefits. 22 This decision became the Commissioner’s
final decision when the Appeals Council denied Ms. V.’s request for review. 23
In the October 2023 decision, at step two of the sequential evaluation, the ALJ
found Ms. V. had the severe impairments of degenerative disc disease of the cervical
and lumbar spine and obesity from June 24, 2017 (her alleged onset date) through

16 Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
17 Id.
18 See 42 U.S.C. §§ 401–434.
19 (See Tr. 88, 992.)
20 (Tr. 88–103.)
21 See Order Granting Def.’s Unopposed Mot. to Remand for Further Admin. Proc.

Under Sentence Four of 42 U.S.C. § 405(g), Dijana V. v. Kijakazi, No. 2:21-cv-00538
(D. Utah July 14, 2022), Doc. No. 25.
22 (Tr. 992–1020.)
23 (Tr. 983–85.)

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December 31, 2019 (her last insured date). 24 The ALJ concluded that from December
4, 2018 through her last insured date, Ms. V. also had the severe impairments of major
depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder
(“PTSD”). 25 The ALJ determined Ms. V. had nonsevere impairments including
gastroesophageal reflux disease, hernia, anal fistula, diverticulitis/diverticulosis,
hypertension, and hypothyroidism. 26 However, the ALJ decided Ms. V.’s alleged
impairments of “history of stroke or [cerebral vascular accident (“CVA”)], vertigo,
blindness, ulcer, osteoarthritis/bursitis, [and] fibromyalgia” were not medically
determinable. 27 At step three, the ALJ found Ms. V.’s impairments did not meet or
medically equal an impairment listing. 28
The ALJ then determined Ms. V. had the residual functional capacity to perform
“light work” throughout the relevant period, “including the ability to lift and/or carry 10
pounds frequently and 20 pounds occasionally”; “frequently stoop, kneel, crouch, and
crawl”; and “frequently climb ramps and stairs, but never climb ladders, ropes, or
scaffolds.” 29 The ALJ decided Ms. V.’s residual functional capacity included additional
mental limitations beginning on December 4, 2018. 30 At step four, based on this

24 (Tr. 995.)
25 (Id.)
26 (Id.)
27 (Tr. 996–97.)
28 (Tr. 997–1000.)
29 (Tr. 1000.)
30 (Id.)

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residual functional capacity and the testimony of a vocational expert, the ALJ concluded
Ms. V. could perform past work as a pharmacy technician, catheter builder, and loan
specialist through December 3, 2018—but could not perform any past work after that
date. 31 Nevertheless, at step five, the ALJ found Ms. V. capable of performing other
jobs for the entire relevant period, including merchandise marker, cleaner/housekeeper,
and cafeteria attendant. 32 Therefore, the ALJ found Ms. V. not disabled during the
relevant period (June 24, 2017 through December 31, 2019) and denied her claim. 33
ANALYSIS
Ms. V. asserts the ALJ erred in finding her history of strokes and fibromyalgia
were not medically determinable. 34 Ms. V. also argues the ALJ erred in her residual
functional capacity assessment—specifically, in her evaluation of medical opinions,
consultative examination findings, and Ms. V.’s exertional limitations. 35 As explained
below, Ms. V. fails to demonstrate any error by the ALJ.
A. Non-medically Determinable Impairments
To be medically determinable, an impairment “must be established by objective
medical evidence from an acceptable medical source.”36 Agency regulations define

31 (Tr. 1017–18.)
32 (Tr. 1018–19.)
33 (Tr. 1019–20.)
34 (See Opening Br. 19–26, Doc. No. 19.)
35 (See id. at 9–17, 28–31.)
36 20 C.F.R. § 404.1521.

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“objective medical evidence” as “medical signs, laboratory findings, or both.” 37 As
explained below, the ALJ found Ms. V.’s history of strokes and fibromyalgia were not
established by objective medical evidence from an acceptable medical source, and the
ALJ’s findings are supported by substantial evidence.
1. History of Strokes
Ms. V. reported a history of two strokes: one in 2014 (before her alleged disability
onset date) and the other several months before her April 2018 consultative exam. 38
But the ALJ observed there were “no actual records of her having a stroke, or even a
lesser cerebral vascular accident (CVA).” 39 As the ALJ noted, an MRI of Ms. V.’s brain
from May 2017 “showed no evidence of prior infarct and was normal.” 40 Likewise, an
April 2019 MRI showed “no evidence of prior brain infarct,” and a June 2020 MRI
showed “stable findings.” 41 The ALJ noted none of these MRI results indicated Ms. V.
had experienced a stroke. 42 The ALJ also observed there was “no evidence from 2017
or 2018 that [Ms. V.] sought treatment for stroke symptoms, despite her allegation in
April 2018 that she experienced a stroke several months prior.” 43 Based on the lack of

37 Id. § 404.1513(a)(1).
38 (See Tr. 996 (ALJ’s summary of Ms. V.’s reported history of strokes); Tr. 603

(consultative examiner’s April 2018 report stating Ms. V. reported she had a stroke in
2014 and a second stroke “several months ago”).)

39 (Tr. 996.)
40 (Id. (citing Tr. 484).)
41 (Id. (citing Tr. 1637–38, 1686).)
42 (Id.)
43 (Id.)

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supporting medical evidence, the ALJ found Ms. V.’s history of strokes was not
medically determinable. 44
Ms. V. fails to identify “objective medical evidence from an acceptable medical
source” in the record supporting a contrary finding. 45 Ms. V. cites the MRI results from
May 2017 and June 2020, 46 but the ALJ accurately noted these results were normal.
Ms. V. fails to explain how they support her allegation regarding a history of strokes.
Ms. V. also cites various other medical records referencing her reported stroke history
or related symptoms, 47 but none constitute objective medical evidence (medical signs or
laboratory findings) confirming she experienced a stroke. 48 For example, Ms. V. cites a
May 2017 treatment record stating Ms. V. was requesting an MRI “to make sure there is
no evidence . . . of stroke” after experiencing lightheadedness and numbness. 49
However, as the ALJ noted, MRI results from the same day were normal. 50 A medical
record describing Ms. V.’s self-reported symptoms, immediately followed by a normal

44 (Tr. 996–97.)
45 See 20 C.F.R. § 404.1521.
46 (See Opening Br. 23, Doc. No. 19 (citing Tr. 47, 484).)

Ms. V. cites a “progress note”
describing findings from the June 2020 MRI, which was submitted to the Appeals
Council after the ALJ’s first decision denying benefits, (see Tr. 47). It is unclear whether
this was part of the record considered by the ALJ in her second decision. But the ALJ
considered a separate “final report” from the same MRI, (Tr. 1637), and both records
indicate the MRI results were normal. (See Tr. 47, 1637.)
47 (See Opening Br. 20, 22, Doc. No. 19 (citing Tr. 169, 462, 537, 606, 1404).)
48 See 20 C.F.R. § 404.1513(a)(1) (defining “objective medical evidence” as “medical

signs, laboratory findings, or both”).

49 (Tr. 462.)
50 (Tr. 484.)

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MRI result, is insufficient to establish a medically-determinable impairment. 51 Likewise,
the various records mentioning the 2014 stroke as part of Ms. V.’s medical history are
insufficient, where there is no objective medical evidence of a 2014 stroke in the
record. 52
Ms. V. also relies on evidence outside the administrative record, which she filed
as an attachment to her opening brief. 53 This attachment contains hospital records from
2014 which Ms. V. contends support her allegations regarding the 2014 stroke. 54 But
this court’s review is limited to the administrative record, and the court may not remand
for consideration of new evidence unless a claimant shows good cause for her failure to
present the evidence at the administrative level. 55 Ms. V. asserts she submitted this
evidence to the Appeals Council on February 8, 2024, five days before the Appeals
Council denied her request for review of the ALJ’s decision. 56 But Ms. V. provides no

51 See 20 C.F.R. § 1521 (“We will not use your statement of symptoms, a diagnosis, or

a medical opinion to establish the existence of an impairment[].”).
52 (See Tr. 169, 462, 537, 606.)
53 (See Doc. No. 20.)

Ms. V. refers to this evidence as “Attachment A” in her opening
brief. (See Opening Br. 2, 22, 27, Doc. No. 19.)
54 (See Opening Br. 21–22, Doc. No. 19 (quoting “Attachment A,” Doc. No. 20 at 18–

19).)

55 See 42 U.S.C. § 405(g) (providing a district court may “enter, upon the pleadings and

transcript of the [administrative] record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause
for a rehearing” (emphasis added)); Morgan v. Astrue, 302 F. App’x 786, 788 (10th Cir.
2008) (unpublished) (finding a district court did not err in declining to consider new
evidence where the claimant did not “assert that there was good cause, or any cause,
for the apparent failure to present the records at the administrative level”).
56 (See Opening Br. 2, Doc. No. 19; see also Tr. 983–85.)

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evidence supporting her assertion that she submitted these documents to the Appeals
Council, and the administrative record contains no indication that the Appeals Council
received or considered them. Ms. V. also fails to make any argument as to why this
court should consider this evidence. In other words, she has not shown she presented
this evidence at the administrative level or that good cause exists for her failure to do
so. Accordingly, this evidence is not considered.
Because Ms. V. fails to identify objective medical evidence in the record
supporting her alleged stroke history, the ALJ did not err in finding her stroke history
was not a medically determinable impairment.
2. Fibromyalgia
Ms. V. next contends the ALJ erred in finding her fibromyalgia was not a
medically determinable impairment.
Social Security Ruling (“SSR”) 12-2p dictates that only a “licensed physician (a
medical or osteopathic doctor)” qualifies as an acceptable medical source for purposes
of establishing fibromyalgia as a medically determinable impairment. 57 The physician
must provide a diagnosis of fibromyalgia and evidence showing the claimant meets one
of two sets of criteria: the 1990 American College of Rheumatology (“ACR”) Criteria for
the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. 58
The record must also show the physician “reviewed the person’s medical history and

57 SSR 12-2p, 2012 SSR LEXIS 1, at *3 (July 25, 2012).
58 Id. at *3–4.

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conducted a physical exam.”59 Finally, the physician’s diagnosis must not be
“inconsistent with the other evidence in the person’s case record.”60
Ms. V. was diagnosed with fibromyalgia by her treating provider Michelle Dahle,
a family nurse practitioner. 61 The ALJ noted Ms. Dahle was not an acceptable medical
source for purposes of establishing fibromyalgia as a medically determinable
impairment. 62 The ALJ also observed the record did not document “any positive tender
points” (required under the 1990 criteria), “repeated manifestation of six or more
fibromyalgia symptoms” (required under the 2010 criteria), or “a rule-out of other
causes” (necessary under both sets of criteria). 63 For these reasons, the ALJ found Ms.
V.’s fibromyalgia was not medically determinable. 64
Ms. V. argues the ALJ erred in finding Ms. Dahle was not an acceptable medical
source for purposes of establishing fibromyalgia. 65 As Ms. V. points out, agency
regulations were revised in 2017 to expand the general definition of “acceptable medical
source,” 66 and the revised definition includes a “Licensed Advanced Practice Registered
Nurse, or other licensed advanced practice nurse with another title, for impairments

59 Id. at *3.
60 Id. at *4.
61 (Tr. 976.)
62 (Tr. 996–97.)
63 (Tr. 997); see also SSR 12-2p, 2012 SSR LEXIS 1, at *5–8.
64 (Tr. 997.)
65 (See Opening Br. 24–25, Doc. No. 19.)
66 See 82 FR 5844 (Jan. 18, 2017).

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within his or her licensed scope of practice.”67 Ms. V. also cites the agency’s Program
Operations Manual System (“POMS”) guidance regarding SSR 12-2p, which states the
agency “plan[s] to revise relevant Social Security Rulings” to conform to the revised
definition of acceptable medical source. 68 However, SSR 12-2p has not been revised to
expand the definition of acceptable medical source for purposes of establishing
fibromyalgia as a medically determinable impairment; the requirement that only a
licensed physician qualifies as an acceptable medical source for this purpose remains in
effect. 69 Moreover, statements in POMS lack the force of law and create no judicially
enforceable rights. 70 Accordingly, the ALJ properly found Ms. Dahle, as a nurse
practitioner, was not an acceptable medical source for purposes of establishing
fibromyalgia as a medically determinable impairment.
Ms. V. also cites medical records from various providers which she contends
cumulatively demonstrate she met the 1990 and 2010 criteria, 71 but she fails to identify

67 20 C.F.R. § 404.1502(a)(7); see also 82 FR 5844, *5846 (identifying nurse

practitioners as one type of Advanced Practice Registered Nurse under the new
definition).

68 POMS DI 24515.076, https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515076,

[https://perma.cc/R8AS-HRQN].

69 SSR 12-2p, 2012 SSR LEXIS 1, at *3; see also Leticia B. v. King, No. 24-116, 2025

U.S. Dist. LEXIS 13309, at *11 n.3 (D.N.M. Jan. 24, 2025) (unpublished) (“Only a
licensed physician (a medical or osteopathic doctor) may provide evidence of a
medically determinable impairment of fibromyalgia.” (citing SSR 12-2p, 2012 SSR
LEXIS 1)).

70 See Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (“[T]he Claims Manual is not a

regulation. It has no legal force, and it does not bind the SSA.”).

71 (See Opening Br. 25–26, Doc. No. 19.)

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any diagnosis of fibromyalgia by a licensed physician in the record. 72 Accordingly, the
ALJ did not err in finding Ms. V.’s fibromyalgia was not medically determinable.
B. Residual Functional Capacity
Ms. V. next challenges the ALJ’s residual functional capacity assessment,
including her evaluation of medical opinions, consultative examination findings, and Ms.
V.’s exertional limitations. 73
A claimant’s residual functional capacity reflects the most she can do in a work
setting considering her limitations. 74 In assessing residual functional capacity, the ALJ
considers “the extent to which an individual’s medically determinable impairment(s),
including any related symptoms, such as pain, may cause physical or mental limitations
or restrictions that may affect his or her capacity to do work-related physical and mental
activities.” 75 The ALJ considers all relevant medical and other evidence in the record. 76

72 See SSR 12-2p, 2012 SSR LEXIS 1, at *3–4 (requiring a fibromyalgia diagnosis by a

licensed physician in addition to evidence that the 1990 or 2010 criteria are met).

73 (See Opening Br. 9–17, Doc. No. 19.)
74 See 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 SSR LEXIS 5, at *1–2

(July 2, 1996).

75 SSR 96-8p, 1996 SSR LEXIS 5, at *5.
76 See 20 C.F.R. § 404.1545(a)(3).

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1. Medical Opinions and Consultative Examination Findings
Ms. V. asserts the ALJ improperly “dismissed” medical opinions from her treating
nurse practitioner, Michelle Dahle; a state agency medical consultant, Dr. Gerald
Rothstein; and a consultative physical examiner, Dr. Richard Ingebretsen. 77
In determining a claimant’s residual functional capacity, an ALJ must assess the
persuasiveness of all medical opinion evidence based on the following factors: (1)
supportability (the objective medical evidence and supporting explanations presented by
the medical source); (2) the consistency of the opinion with other medical and
nonmedical sources; (3) the relationship with the claimant (including its length,
frequency, purpose, and extent—and whether it was an examining relationship); (4) any
specialization; and (5) any other relevant factors. 78 The most important factors are
supportability and consistency, and the ALJ is required to explain how she evaluated
those two factors. 79
As explained below, the ALJ properly evaluated medical opinions from Ms. Dahle
and Dr. Gerard under this framework, and correctly determined Dr. Ingebretsen’s report
did not contain medical opinions as defined in agency regulations.

77 (See Opening Br. 9–12, Doc. No. 19.)

In her opening brief, Ms. V. also discusses the
findings of a psychological consultative examiner, Dr. Kathy Barnett, but she does not
allege any error in the ALJ’s consideration of Dr. Barnett’s report. (See id. at 27–28.)
78 20 C.F.R. § 404.1520c(b), (c)(1)–(5).
79 Id. § 404.1520c(b)(2).

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a. Ms. Dahle
Ms. Dahle provided medical opinion statements in October 2018 and January
2020, 80 which the ALJ considered. 81 In an October 2018 letter, Ms. Dahle opined Ms.
V. could not stand for “extended amounts of time” or “greater than 30 minutes,” could
not “commit to work daily,” and was “not currently able to work.” 82 In a January 2020
letter, Ms. Dahle stated she had diagnosed Ms. V. with fibromyalgia and opined Ms. V.
could not “stand or sit for any length of time due to [] chronic severe pain.”83 Ms. Dahle
also filled out a check-box form in January 2020 indicating Ms. V. could stand/walk for
less than two hours, sit for less than two hours, and must lie down for six hours in an
eight-hour workday; could repetitively lift only ten pounds; could use her hands only
occasionally; could not stoop, bend repeatedly, climb stairs, or crawl due to
fibromyalgia; could not perform any basic mental work activities, and could not work due
to fibromyalgia, hypertension, hernia, degenerative disc disease, vertigo, PTSD, and
history of CVA. 84
The ALJ found these opinions unpersuasive, concluding they lacked support and
were inconsistent with both Ms. Dahle’s own treatment records and the overall record. 85
And the ALJ provided detailed reasons for her supportability and consistency findings.

80 (Tr. 665, 876–78, 941–42 (duplicate of Tr. 877–78), 1665 (duplicate of Tr. 665).)
81 (Tr. 1010–11.)
82 (Tr. 665.)
83 (Tr. 876.)
84 (Tr. 877–78.)
85 (Tr. 1010–11.)

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For example, the ALJ noted Ms. Dahle’s opinions were based in part on Ms. V.’s
fibromyalgia and stroke history, but the record lacked the evidence necessary to
establish these conditions as medically determinable impairments. 86 The ALJ also
determined Ms. Dahle’s opinions were inconsistent with records from her own
examinations of Ms. V., which contained normal neurologic, sensory, and motor
findings. 87 And the ALJ observed “Ms. Dahle’s impression of the claimant’s clinical
presentation has differed from other treatment providers, with Ms. Dahle finding that the
claimant’s symptoms and limitations have been more significant.”88
Other than arguing Ms. Dahle was an acceptable medical source to diagnose
fibromyalgia (which is incorrect, as explained above), Ms. V. fails to develop any
argument as to how the ALJ erred in her evaluation of Ms. Dahle’s opinions. As
described above, the ALJ applied the correct legal standards in evaluating these
opinions, and the evidence cited by the ALJ is sufficient to support her findings
regarding supportability and consistency. Accordingly, Ms. V. has demonstrated no
error in the ALJ’s assessment of Ms. Dahle’s opinions.
b.

Dr. Rothstein

Dr. Rothstein, a state agency medical consultant, reviewed the record in January
2019 (on reconsideration of the initial denial of Ms. V.’s claim) and opined Ms. V. could
perform “light” work; could never climb ladders, ropes, or scaffolds; and frequently
86 (Id.)
87 (Tr. 1011 (citing Tr. 887).)
88 (Id. (citing Tr. 603–08 (4/13/2018 consultative examination by Dr. Ingebretsen), Tr.

667 (10/30/2018 progress note from Ms. Dahle), Tr. 709 (11/6/2018 progress note from
Craig Yerke, PA).)
16

stoop, kneel, crouch, crawl, and climb ramps/stairs; and had manipulative limitations in
her left hand. 89 The ALJ found Dr. Rothstein’s opinion persuasive except as to the
manipulative limitations. 90 The ALJ noted Dr. Rothstein cited Ms. V.’s history of CVA
(stroke) to support the manipulative limitations, but the ALJ reiterated CVA “is not
established in the medical evidence.”91 Accordingly, the ALJ found “there is no support
for the CVA to justify [manipulative] limitations.” 92 Otherwise, the ALJ found Dr.
Rothstein’s opinions contained “adequate support” and were “more consistent with the
evidence received at the hearing level, including the claimant’s subjective reports,” than
the prior state agency opinion of Dr. Kim Heaton (who opined Ms. V. was capable of
“medium” work). 93
Ms. V. suggests the ALJ improperly “[d]ismissed . . . Dr. Rothstein (who opined
manipulative limitations),” 94 but she does not further develop this argument in her
opening brief. Because the ALJ rejected only the manipulative limitations (and
otherwise found Dr. Rothstein’s opinions persuasive), the court construes Ms. V.’s
argument as challenging only this portion of the ALJ’s assessment.

89 (Tr. 179–99.)
90 (Tr. 1013.)
91 (Id.; see also Tr. 195 (stating “Post-CVA” as the basis for the opined manipulative

limitations).)

92 (Tr. 1013.)
93 (Id.)
94 (Opening Br. 9, Doc. No. 19.)

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The ALJ did not err in rejecting Dr. Rothstein’s opinion regarding manipulative
limitations. As explained above, the ALJ appropriately found Ms. V.’s history of
stroke/CVA was not medically determinable due to a lack of evidence in the record that
Ms. V. had experienced a stroke. And the ALJ was only required to consider Ms. V.’s
medically determinable impairments in assessing her residual functional capacity. 95
Where Dr. Rothstein’s only stated basis for recommending manipulative limitations was
Ms. V.’s stroke history, and the stroke history was not medically determinable, the ALJ
did not err in finding the manipulative limitations unsupported.
In her reply, Ms. V. asserts Dr. Rothstein provided an additional explanation for
the opined manipulative limitations, apart from her stroke history. 96 Ms. V. points to the
statement at the bottom of Dr. Rothstein’s form, under the heading “RFC – Additional
Explanation,” that “[b]ased on [medical evidence of record], additional limitations in
manipulation, left hand and postural limitation are included.” 97 But read in context, this
statement merely summarizes the differences between Dr. Rothstein’s residual
functional capacity opinion and the earlier assessment by Dr. Heaton. This summary
statement provides no explanation regarding what medical evidence supported the
additional manipulative limitations. As noted, on the section of the form specifically
inviting an explanation for the manipulative limitations, Dr. Rothstein merely stated

95 See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable

impairments of which we are aware, including your medically determinable impairments
that are not ‘severe,’ . . . when we assess your residual functional capacity.”).
96 (See Reply Br. 7–8, Doc. No. 31.)
97 (Tr. 195–96.)

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“Post-CVA.” 98 Accordingly, the ALJ did not err in treating this as Dr. Rothstein’s only
stated basis for the opined manipulative limitations—nor did she err by rejecting such
limitations where Ms. V.’s stroke history was not medically determinable.
c.

Dr. Ingebretsen

Ms. V. next challenges the ALJ’s evaluation of Dr. Ingebretsen’s consultative
examination report from April 2018. 99 The ALJ described Dr. Ingebretsen’s report as
“diagnostic in nature,” and noted “he did not provide an opinion regarding the claimant’s
ability to perform work-related physical activities.” 100 As a result, the ALJ concluded
there was no “medical opinion” to assess. 101 Even so, the ALJ found Ms. V.’s
“presentation and reports at this evaluation [were] not well supported [by] the overall
record, including no evidence to support a history of stroke, or a diagnosis of
osteoarthritis in her hands, with no imaging.” 102
The ALJ’s assessment is consistent with agency regulations, which define
“medical opinion” narrowly as “a statement from a medical source about what [the
claimant] can still do despite [the claimant’s] impairment(s) and whether [the claimant
has] one or more impairment-related limitations or restrictions” in certain enumerated
work-related abilities. 103 Indeed, Ms. V. fails to identify any portion of the report which

98 (Tr. 195.)
99 (See Opening Br. 9–10, 13–15, Doc. No. 19.)
100 (Tr. 1013.)
101 (Id.)
102 (Id.)
103 20 C.F.R. § 404.1513(a)(2).

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could qualify as a medical opinion under this definition. Accordingly, the ALJ was not
required to evaluate the persuasiveness of the report or articulate findings regarding
supportability and consistency. Still, Ms. V. asserts the ALJ improperly ignored Dr.
Ingebretsen’s observations and findings. 104
Contrary to Ms. V.’s argument, the ALJ extensively discussed Dr. Ingebretsen’s
examination in her decision, citing his report eighteen times. 105 For example, the ALJ
referred to the symptoms, limitations, and daily activities Ms. V. reported to Dr.
Ingebretsen. 106 The ALJ also discussed Dr. Ingebretsen’s exam findings and
observations, noting Ms. V. had a negative straight leg raise, presented without a
walker, and could use her hands for fine and gross tasks. 107 But the ALJ did not merely
cite portions of the report favorable to her conclusions: she also acknowledged Ms. V.
“demonstrated left-sided weakness and slower motor response” during Dr.
Ingebretsen’s exam (but noted Ms. V. demonstrated decreased strength in her right leg
during an orthopedist exam seven months later). 108 Finally, despite concluding the
report contained no medical opinions, the ALJ still articulated a finding that Ms. V.’s

104 (Opening Br. 13–14, Doc. No. 19.)
105 (See Tr. 995–96, 998–99, 1002–05, 1008, 1011.)

the ALJ’s decision as “Ex. 9F.”

Dr. Ingebretsen’s report is cited in

106 (See Tr. 997 (noting Ms. V. alleged vertigo and back, neck, and hand pain following

a stroke; alleged blindness; and alleged she had stropped driving (citing Tr. 603–04));
Tr. 998–99 (noting Ms. V. reported she watched TV and read a lot, and continued to
translate for people (citing Tr. 604)).)
107 (Tr. 1002–03 (citing Tr. 604–06).)
108 (Tr. 1004 (citing Tr. 603, 606, 709)); cf. Hardman v. Barnhart, 362 F.3d 676, 681

(10th Cir. 2004) (“It is improper for the ALJ to pick and choose among medical reports,
using portions of evidence favorable to his position while ignoring other evidence.”).
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reports and presentation during the exam were “not well supported” by the medical
record. 109 The record shows the ALJ adequately considered Dr. Ingebretsen’s report. 110
2. Exertional Limitations
Ms. V. next contends the ALJ erred by failing to adequately account for her
walking limitations in the residual functional capacity assessment. 111 Specifically, Ms.
V. argues the evidence does not support the ALJ’s finding that she is capable of the full
exertional range of light work. 112
An ALJ must evaluate a claimant’s self-reported symptoms using a two-step
process. First, she “must consider whether there is an underlying medically
determinable physical or mental impairment(s) that could reasonably be expected to
produce an individual’s symptoms, such as pain.” 113 Second, the ALJ must “evaluate
the intensity and persistence of those symptoms to determine the extent to which the
symptoms limit an individual’s ability to perform work-related activities.” 114 In doing so,
the ALJ must “examine the entire case record.” 115 The ALJ considers factors such as:

109 (Tr. 1013.)
110 See Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996) (“The record must

demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to
discuss every piece of evidence.”).
111 (See Opening Br. 10, 13–17, Doc. No. 19.)
112 (See id. at 17.)
113 SSR 16-3p, 2016 SSR LEXIS 4, at *3 (Oct. 25, 2017); see also 20 C.F.R.

§ 404.1529(b).

114 SSR 16-3p, 2016 SSR LEXIS 4, at *4; see also 20 C.F.R. § 404.1529(c).
115 SSR 16-3p, 2016 SSR LEXIS 4, at *9–10; see also 20 C.F.R. § 404.1529(c).

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the claimant’s daily activities; the duration, frequency, and intensity of symptoms;
medication taken and whether it alleviates the symptoms; and other treatment or
measures used to relieve the symptoms. 116 The ALJ also considers any inconsistences
between the claimant’s statements and the rest of the evidence (including the claimant’s
history, medical signs and laboratory findings, and statements by medical sources and
others). 117
Here, the ALJ considered Ms. V.’s reported difficulty “lifting, squatting, bending,
standing, reaching, walking, sitting, kneeling, [and] stair climbing,” as well as Ms. V.’s
testimony that she could not work due to low back pain, leg swelling, and her use of a
walker. 118 The ALJ followed the two-step process set forth above, finding Ms. V.’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, but that Ms. V.’s statements regarding the intensity, persistence, and limiting
effects of these symptoms were not entirely consistent with the record evidence. 119 The
ALJ found the medical evidence showed Ms. V. received “limited specialized treatment,”
“engaged in treatment for the purposes of obtaining disability,” “demonstrated no more
than moderate functional deficits,” and “reported and presented with multiple
inconsistencies.” 120

116 SSR 16-3p, 2016 SSR LEXIS 4, at *18–19; see also 20 C.F.R. § 404.1529(c)(3).
117 20 C.F.R. § 404.1529(c)(4).
118 (Tr. 1001.)
119 (Id.)
120 (Id.)

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The ALJ first addressed the objective medical evidence, referring to MRIs
showing Ms. V. had degenerative disc disease in her cervical and lumbar spine. 121 But
the ALJ noted that despite these findings, Ms. V. demonstrated a negative straight leg
raise in the April 2018 consultative examination. 122 While the ALJ acknowledged “some
clinical findings of reduced range of motion” in Ms. V.’s cervical spine and lumbar spine
from a 2017 treatment visit and the April 2018 consultative examination, she noted there
were “no consistent findings of such deficits.” 123 Further, at an April 2019 examination
by her cardiologist, Ms. V. demonstrated normal motor strength, full range of motion,
and had no edema. 124 The ALJ also considered Ms. V.’s report to her primary care
provider in October 2018 that she needed neck and back surgery, but noted the record
contained no documentation showing any provider had recommended surgery. 125
With respect to walking limitations, the ALJ found the record did not support Ms.
V.’s allegation that she was dependent on a walker. 126 The ALJ acknowledged Dr.
Ingebretsen and a mental health provider observed an unstable gait in April 2018 and
March 2019, but Ms. V. did not use a walker during those visits. 127 Further, the ALJ
noted Ms. V. denied gait abnormality in June 2017, and other providers and the

121 (Id.)
122 (Tr. 1002 (citing Tr. 606).)
123 (Tr. 1006 (citing Tr. 418–23).)
124 (Tr. 1002–03, 1006 (citing Tr. 1657–59).)
125 (Tr. 1003 (citing Tr. 672).)
126 (Tr. 1002, 1005–06.)
127 (Tr. 1002 (citing Tr. 604–05, 818).)

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psychological consultative examiner observed a normal/coordinated gait in April 2018,
December 2018, and April 2019. 128
The ALJ concluded the overall record reflected “good, stable findings on exam,
from a motor, sensory, and reflex standpoint,” and no examination findings supported
Ms. V.’s statements regarding “an inability to sit, stand, or walk for more than minimal
periods, or lift more than a few pounds.” 129 The ALJ also noted Ms. V.’s symptoms had
been treated conservatively with medication, and Ms. V. “fail[ed] to follow through with
recommendations for physical therapy, or return for any other treatment modalities,
such as injections, massage, etc.”130 Based on these findings, the ALJ determined Ms.
V. was capable of “light” work. 131
Ms. V. has demonstrated no error in the ALJ’s assessment of her exertional
limitations. Substantial evidence supports the ALJ’s findings regarding these limitations,
including the medical records cited in the decision and summarized above. These
findings are also supported by Dr. Rothstein’s opinion (which the ALJ found persuasive)
that Ms. V. could perform at a “light” exertional level. 132 This evidence qualifies as
substantial evidence (more than a “mere scintilla” 133) supporting the ALJ’s findings.

128 (Id. (citing Tr. 519, 612, 614, 784, 810).)
129 (Tr. 1006.)
130 (Id.)
131 (Tr. 1006–07.)
132 (See Tr. 179–99, 1013.)
133 Biestek, 587 U.S. at 103.

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Although Ms. V. asserts the record supports a finding of finding of greater
exertional limitations, she fails to show the ALJ erred. First, Ms. V. argues the MRIs
showed “deterioration,” but she does not explain how this undermines the ALJ’s findings
regarding her exertional limitations. 134 As noted, the ALJ considered the MRIs and
acknowledged they showed degenerative changes. 135 Next, Ms. V. argues her “slow”
gait has been observed by “various medical sources.” 136 But again, the ALJ
acknowledged the record contained mixed observations regarding Ms. V.’s gait. 137
Although Ms. V. cites some additional records of abnormal gait, not specifically
referenced by the ALJ, 138 the ALJ was not required to discuss every piece of
evidence. 139 Moreover, Ms. V. does not dispute that many other records showed a
normal gait, as the ALJ noted. 140 The record demonstrates the ALJ adequately
considered the mixed medical evidence regarding Ms. V.’s gait, and permissibly

134 (Opening Br. 12–13, 17, Doc. No. 19.)
135 (Tr. 1001.)
136 (Opening Br. 16, Doc. No. 19 (citing Tr. 420, 792, 818, 838, 846, 862, 1458, 1475).)
137 (See Tr. 1002.)
138 (See Tr. 420, 838, 846, 862, 1458, 1475.)
139 See Clifton, 79 F.3d at 1009–10.
140 (See Opening Br. 16 n.68, Doc. No. 19.)

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concluded Ms. V. was not as limited as she alleged. 141 At bottom, Ms. V.’s arguments
are merely an invitation to reweigh the evidence. 142
Ms. V. also argues her asserted need for a walker was not inconsistent with the
medical evidence. 143 Ms. V. claims she only said that she needed a walker at home
and for long distances, which was not inconsistent with attending appointments without
a walker. 144 But Ms. V. testified at the hearing that she could not “walk without [a]
walker” and used it “nonstop.” 145 The ALJ did not err in finding these statements
unsupported where Ms. V. attended numerous medical appointments without a walker
and was often observed to have normal gait.
Finally, Ms. V. suggests the ALJ improperly relied on a Cooperative Disability
Investigations146 (“CDI”) report in discounting Ms. V.’s allegations. 147 The CDI
investigator observed Ms. V. driving and walking from her driveway to her house without
a walker. 148 The ALJ primarily relied on the CDI report in support of the mental residual
functional capacity assessment (which Ms. V. does not challenge), but also noted it
141 See Lax, 489 F.3d at 1084 (“The possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” (citation omitted)).

142 See Langley, 373 F.3d at 1118.
143 (See Opening Br. 17, Doc. No. 19.)
144 (Id.)
145 (Tr. 1275–76.)
146 The Cooperative Disability Investigations program investigates reports of social

security fraud. See https://oig.ssa.gov/cdi/ [https://perma.cc/SCS3-7868].
147 (See Opening Br. 28–29, Doc. No. 19.)
148 (See Tr. 661–62.)

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undermined Ms. V.’s assertions that she could not drive and needed a walker. 149 Ms. V.
suggests the ALJ should not have relied on the report because she was not criminally
indicted for fraud. 150 But Ms. V. neglects to cite any authority for the proposition that an
ALJ cannot rely on evidence from a CDI investigation unless it results in a criminal
indictment. Ms. V. has not shown the ALJ erred in relying on the investigator’s
observations or considering evidence from the CDI investigation.
Because the ALJ’s findings are supported by substantial evidence, Ms. V. has
demonstrated no error in the ALJ’s assessment of her exertional limitations.
CONCLUSION
The Commissioner’s decision is affirmed.
DATED this 5th day of March, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge

149 (See Tr. 999, 1005, 1007–08.)
150 (See Opening Br. 29, Doc. No. 19.)

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