Vaughn v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

JENNIFER V., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-654-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration,1 )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of a decision of the

Commissioner of the Social Security Administration (Commissioner) denying Social

Security disability benefits. For the reasons set forth below, the Commissioner’s decision

is affirmed.

I. Standard of Review

The Social Security Act (Act) provides disability insurance benefits to qualifying

individuals who have a physical or mental disability. See 42 U.S.C. § 423. The Act defines

“disability” as an “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

1 Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is substituted

as the defendant in this action, effective upon her appointment as Acting Commissioner of

Social Security in July 2021. No further action need be taken to continue this suit by reason

of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

death or which has lasted or can be expected to last for a continuous period of not less than

12 months.” See id. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S.Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may

not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d

at 1178.

II. Procedural History

On May 31, 2019, Plaintiff applied for disability benefits under Title II and Title

XVI of the Act, alleging a disability onset date of April 11, 2003. (R. 12). Plaintiff later

amended her alleged onset date to May 31, 2019 and voluntarily dismissed her Title II

claim. (R. 13). Plaintiff was 45 years old on the amended alleged disability onset date.

Plaintiff alleged disability due to bipolar disorder, depression, anxiety, post-traumatic

stress disorder (PTSD), migraines, and restless leg syndrome. (R. 71).

Plaintiff’s claim was denied initially on August 14, 2019 and denied on

reconsideration on November 15, 2019. (R. 12). Plaintiff then requested a hearing before

an Administrative Law Judge (ALJ). The ALJ held a hearing on June 18, 2020, at which

Plaintiff was represented by counsel, and a vocational expert (VE) provided testimony. Id.

The ALJ denied benefits in a decision dated July 27, 2020. (R. 9-30). On October 26, 2020,

the Appeals Council denied Plaintiff’s request for review. (R. 1). As a result, the ALJ’s

decision became the final decision of the Commissioner. Id. Plaintiff then timely appealed

to the district court. Accordingly, the Court has jurisdiction to review the ALJ’s July 27,

2020 decision under 42 U.S.C. § 405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams, 844 F.2d at 751 (internal quotation and citation

omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404, subpt. P, App’x 1 (Listings).

At step four, the claimant must show that her impairment or combination of impairments

prevents her from performing her previous work. The claimant bears the burden on steps

one through four. Lax, 489 F.3d at 1084. If the claimant satisfies this burden, thus

establishing a prima facie case of disability, the burden of proof shifts to the Commissioner

to show at step five that the claimant retains the capacity to perform other work available

in the national economy, in light of the claimant’s age, education, and work experience. Id.

Here, the ALJ determined at step one that Plaintiff had not engaged in substantial

gainful activity since May 31, 2019, the amended alleged onset date. (R. 15). At step two,

the ALJ found that Plaintiff suffers from severe impairments of bipolar I disorder,

intermittent explosive disorder, PTSD, obesity, and migraine headaches. Id.

At step three, the ALJ determined that Plaintiff’s impairments do not meet or

medically equal a Listing. The ALJ discussed the “paragraph B” criteria—four areas of

mental functioning used to determine whether a claimant’s mental impairments

functionally equal a Listing. (R. 14); see 20 C.F.R. § 404 Subpt. P App’x 1. The ALJ found

that Plaintiff has a moderate limitation in each of the four relevant domains—

understanding, remembering, and applying information; interacting with others; and

concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 17-

18). Because Plaintiff does not have at least one extreme or two or more marked limitations,

the ALJ found the paragraph B criteria are not satisfied. The ALJ also considered the

“paragraph C” criteria (for “serious and persistent mental disorders,” see Listing

12.00A(2)(c)) and determined that they are not present. (R. 18).

At step four, the ALJ determined that Plaintiff has the residual functional capacity

(RFC) to perform

medium work as defined in 20 CFR 416.967(c) except as follows:

The claimant is able to understand, remember, and carry out simple

tasks with simple instructions in a routine work setting, meaning [a

specific vocational preparation (SVP) level] of 1 to 2. She is capable

of occasional interaction with coworkers and supervisors. She

should have no interaction with the general public, although contact

would be ok. She should perform no tandem or teamwork. [Plaintiff]

is able to handle occasional changes in work processes. She should

not be exposed to extreme heat, which is defined as above ninety

degrees. Finally, she will be off task ten percent of the workday and

will miss work one day a month.

Id. Because Plaintiff has no past relevant work, the ALJ proceeded to step five. Id.

The VE testified that an individual with the same RFC could perform the

requirements of representative occupations including:

 Machine Packager, medium-exertion work, SVP level 2, with 177,000 such jobs

existing in the national economy, DOT # 920.684-078;

 Hospital Cleaner, medium-exertion work, SVP level 2, with 1,000,000 such jobs

existing in the national economy, DOT # 323.687-010; and

 Warehouse Worker, medium-exertion work, SVP level 2, with 157,500 such jobs

in the national economy, DOT # 922.687-185.

(See R. 25-26). Citing the VE’s testimony, the ALJ found there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform. (R. 26).

Accordingly, the ALJ found Plaintiff not disabled at step five. Id.

IV. Discussion

Plaintiff argues that the ALJ (1) failed to properly evaluate Plaintiff’s subjective

statements, (2) improperly discounted the mental health treating source opinion, (3)

assessed an RFC determination unsupported by substantial evidence, and (4) failed to

support her step-five findings with adequate evidence. The Commissioner contends that

the ALJ applied the proper legal standards and that substantial evidence supports the ALJ’s

decision.

A. Subjective Statements

Plaintiff argues the ALJ erred in evaluating the consistency of her statements

regarding her (i) migraine headaches and (ii) social limitations. In evaluating a claimant’s

statements regarding pain or other symptoms, the ALJ “must consider (1) whether [a

c]laimant established a pain-producing impairment by objective medical evidence; (2) if

so, whether there is a ‘loose nexus’ between the proven impairment and the [c]laimant’s

subjective allegations of pain; and (3) if so, whether, considering all the evidence, both

objective and subjective, [the c]laimant’s pain is in fact disabling.” Thompson v. Sullivan,

987 F.2d 1482, 1488 (10th Cir. 1993) (internal citation omitted).

When determining the credibility of pain testimony, the ALJ should

consider such factors as “the levels of medication and their

effectiveness, the extensiveness of the attempts (medical or

nonmedical) to obtain relief, the frequency of medical contacts, the

nature of daily activities, subjective measures of credibility that are

peculiarly within the judgment of the ALJ, the motivation of and

relationship between the claimant and other witnesses, and the

consistency or compatibility of nonmedical testimony with objective

medical evidence.

Id. at 1489 (internal citations omitted).2

2 The agency no longer uses the term “credibility” to describe the ALJ’s analysis of

subjective symptoms. See Social Security Ruling (SSR) 16-3p, 2017 WL 5180304 (the

Commissioner “eliminat[ed] the use of the term ‘credibility’ from [the] sub-regulatory

policy, as [the] regulations do not use this term,” and “subjective symptom evaluation is

not an examination of an individual’s character”). However, the standard of review of the

ALJ’s consistency analysis is the same as when the agency used the term “credibility.” See,

e.g., Zhu v. Comm’r, SSA, --- F. App’x ---, 2021 WL 2794533, *5, n.7 (10th Cir. Jul. 6,

2021).

The ALJ must explain “the link between the evidence and credibility

determination.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Under agency

regulations, the ALJ’s decision must give “specific reasons for the weight given to the

individual’s symptoms, be consistent with and supported by the evidence, and be clearly

articulated so the individual and any subsequent reviewer can assess how the [ALJ]

evaluated the individual’s symptoms.” SSR 16-3p. However, “[c]redibility determinations

are peculiarly the province of the finder of fact”—that is, the ALJ, not the court. Wilson v.

Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing Kepler, 68 F.3d at 391). “So long as

the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s credibility,

the dictates of Kepler are satisfied.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000);

see also SSR 16-3p, 2016 WL 1237954.

1. Migraines

Plaintiff testified to experiencing debilitating migraine headaches three to four days

per week, lasting a few hours to a few days. (R. 19). The ALJ’s decision acknowledged

this testimony. Id. The ALJ determined Plaintiff’s migraine headaches constitute a severe

impairment and warranted restrictions in the RFC determination. (See R. 18, 21). Thus, the

ALJ satisfied the first two steps under Thompson.

The ALJ limited Plaintiff to medium-exertion work, despite examinations finding

Plaintiff had normal motor strength and normal movement of all extremities, due in part to

her migraine headaches. (See R. 22). The ALJ determined that Plaintiff’s migraines

warranted additional limitations in the RFC, including that Plaintiff would be off-task ten

percent of the workday, would miss one workday per month, and should not be exposed to

“extreme heat,” defined as heat above 90 degrees. (See R. 19, 23). However, the ALJ found

that Plaintiff’s statements regarding her migraine symptoms were not entirely consistent

with other evidence in the record. (R. 18-19).

The ALJ discussed relevant evidence and provided reasons for this determination.

First, the ALJ noted that Plaintiff’s medical records “do not show a pattern of frequent

treatment for intractable headaches.” (R. 22; see also R. 19 (citing Exs. 4F and 9F) (noting

absence of “frequent pattern of treatment for specific migraine headaches lasting more than

a day” in Plaintiff’s primary care records). Plaintiff objects that the ALJ may not properly

discount her allegations simply because the treatment “did not match what the ALJ thought

was appropriate.” (Pl.’s Br., Doc. 14 at 5). But the “extensiveness of [a claimant’s] attempts

to obtain . . . relief” is among the factors the ALJ should consider in evaluating a claimant’s

subjective statements. Thompson, 987 F.2d at 1489. Similarly, the ALJ properly considered

Plaintiff’s use of medications to treat her migraine symptoms and the frequency of medical

contacts relating to migraines. See id.

Plaintiff does not dispute that the record lacks evidence of frequent treatment for

prolonged migraines. (See Doc. 14 at 5). Additionally, the ALJ’s decision reflects that she

considered the existing evidence. In April 2019, Plaintiff complained of light sensitivity

and twice-weekly migraines lasting up to 18 hours, and she was prescribed two

medications. (R. 20, 615-616). However, in July 2019, Plaintiff’s doctor assessed her

headaches as “not intractable” and “without status migrainosus” (i.e., not lasting longer

than 72 hours). (R. 20, 756-757). The ALJ also noted Plaintiff’s testimony that she takes

medications after a migraine starts, but does not take a preventative medication, because

she has not found one that worked. (R. 19). Additionally, the state agency reviewing

physicians, Mohamed Kanaa, M.D. and Wyatt Rousseau, M.D., opined that Plaintiff could

perform medium-exertion work, with no environmental limitations regarding her

migraines. (See R. 23).

Plaintiff argues that her headaches impose greater limitations than those assessed

by the ALJ, and would preclude substantial gainful activity. However, the ALJ supported

her conclusion with analysis of the proper factors and reference to specific evidence in the

record. Qualls v. Apfel, 206 F.3d at 1372. Nothing more was required. See Keyes-Zachary

v. Astrue, 695 F.3d at 1169 (10th Cir. 2012) (finding ALJ’s discussion adequate where he

“listed many of [the claimant’s] specific factual assertions, often following them by a

qualifying statement to indicate where he believed her testimony was contradicted or

limited by other evidence in the record”); see also Hawkins v. Chater, 113 F.3d 1162, 1169

(10th Cir. 1997) (a claimant has the burden to prove that her impairments “significantly

limit[ed]” her ability to perform “basic work activity”).

2. Social Interaction

The ALJ included social interaction limitations in the RFC determination to address

symptoms of Plaintiff’s bipolar I disorder, intermittent explosive disorder, and PTSD. (See

R. 15, 18). As noted supra Part III, the RFC is restricted to occasional interaction with

coworkers and supervisors, contact but no interaction with the general public, and no

tandem or teamwork. (R. 18). Nonetheless, Plaintiff contends that the ALJ improperly

discounted her allegations that she rarely leaves her house, becomes nervous around other

people, has very limited social contact, and has had verbal altercations with others due to

difficulty managing her anger. (Doc. 14 at 6-8). For example, Plaintiff testified that being

around other people makes her “very nervous,” and that she has difficulty managing her

anger. (R. 55).

The ALJ acknowledged Plaintiff’s testimony about her mental health symptoms and

cited substantial evidence supporting the social-interactive limitations included in the RFC

determination. (See R. 19 (noting Plaintiff tries to avoid other people and “testified she

does not get along well with others because of her angry outbursts; she described herself

as very confrontational,” but also “said her medications are helpful”); R. 20-21 (discussing

Plaintiff’s therapy records)). However, a claimant’s subjective complaints of symptoms,

alone, are not sufficient to establish disability. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §

416.929.

The ALJ’s decision includes details from ten of Plaintiff’s visits with mental health

providers between April 2019 and March 2020. (R. 19-22). As the ALJ acknowledged, on

several of these occasions, Plaintiff appeared irritable, reported experiencing anger around

other people, and reported not wanting to leave her house. However, in many of the same

visits, Plaintiff was noted to be attentive, oriented, and well-groomed. (R. 20-21). Her

attention was “excellent” on at least three occasions. Id. Plaintiff also reported to her

providers that medications were helping with some of her symptoms, including depression,

anxiety, and anger. (R. 20). In other instances, Plaintiff reported that she had not taken

prescribed medication. See id. At various times, Plaintiff also indicated that her mental

symptoms related to stressful circumstances in her life. (R. 20-21). The ALJ noted that on

February 18, 2020, Plaintiff’s presented with irritable mood, blunted affect, poor eye

contact, and unkempt hygiene. (R. 21). However, Plaintiff was oriented, dressed

appropriately, showed linear thought process, and was able to develop and express coping

skills she could use on an upcoming trip. (R. 21-22).

An outpatient behavior health assessment completed by Mr. Cordero on March 25,

2020 noted diagnoses of bipolar I disorder, intermittent explosive disorder, and PTSD, and

noted that Plaintiff had reported experiencing daily depression, isolation, anger, not

showering, staying in bed, and having feelings of worthlessness and hopelessness. (R. 22).

However, while Plaintiff stated that she had no relationship with her parents, and had

problems maintaining relationships due to past abuse, she stated that she had a good

relationship with three of her four children. Id. Mr. Cordero assessed a “poor” prognosis

and recommended continued therapy and medication management. Id. Yet, as the ALJ

further noted, while Plaintiff “has a history of arguing with clinic staff, the record does not

include incidents of physical violence.” (R. 25 (citing mental health treatment records at

Exs. 5F, 6F, and 8F).

Accordingly, consistent with Kepler, the ALJ set forth specific evidence she relied

upon in finding Plaintiff’s mental impairments are not as limiting as alleged. Nothing more

was required.

B. Mallgren/Cordero Opinion

Plaintiff contends the ALJ committed reversible error in finding the opinion of

Weldon Mallgren, M.D., Kris Cordero, LPC-C, was not persuasive. An ALJ must articulate

how she considered the medical opinions or prior administrative medical findings from

each medical source, 20 C.F.R. § 404.1520c(b)(1). For claims, such as this one, filed on or

after March 27, 2017, the Commissioner does not “defer or give any specific evidentiary

weight, including controlling weight, to any medical opinions.” 20 C.F.R. § 404.1520c(a).

Rather, the ALJ must consider the relevant factors in determining the persuasiveness of a

medical source’s opinion, and the most important factors for the ALJ to consider are

supportability and consistency. Id. § 416.920c(b)(2).3

Evidence in the record shows that Plaintiff received mental health treatment in 2019

and 2020 at Grand Lake Mental Health Center from Dr. Mallgren, Mr. Cordero, LPC-C,

and other providers with the same clinic.4 Dr. Mallgren and Mr. Cordero signed a medical

source statement (MSS) dated April 24, 2020. (R. 768-770). The MSS noted that Plaintiff

had diagnoses of Bipolar I disorder and PTSD. (R. 24). It also noted that Plaintiff “had

blown up at staff under minimal stress and had negative altercations with another consumer

in the lobby.” Id.

The checkbox-style MSS indicated that Plaintiff had “marked” limitations in each

listed area. (R. 768-770). As noted in the ALJ’s decision, the areas designated as “marked”

limitations encompass “all areas of understanding and memory, attention and

concentration, and . . . social interaction.” (R. 24). Dr. Mallgren and Mr. Cordero also

responded to a single-question questionnaire from Plaintiff’s counsel, dated June 3, 2020,

3 The ALJ must also consider the medical source’s relationship with the claimant,

specialization, and other factors, but the ALJ’s decision is not required to specifically

address those additional factors. Id. § 416.920c(c).

4 The ALJ determined that Plaintiff primarily saw Mr. Cordero, noting Plaintiff

testified that she did not know whether she had ever seen Dr. Mallgren. (R. 24).

in which they indicated that Plaintiff would be unable “100% of the 8-hour workday” to

perform the mental activities designated as “marked” on the earlier MSS. (R. 775).

The ALJ found that the opinion of Dr. Mallgren and Mr. Cordero is not persuasive

because, “while the treatment records included mental status examinations with findings

of anger and hostility, there are not findings of deficiencies in memory or concentration so

severe and frequent as to support marked limitations in all the areas listed in Dr. Mallgren

and LPC Cordero’s opinion.” (R. 24). Moreover, “while [Plaintiff] has a history of arguing

with clinic staff, the record does not include incidents of physical violence; further,

[Plaintiff] has reported medications have helped with her anger.” (R. 25; see also R. 24

(treatment records noting that medications were helping).

Accordingly, the ALJ found the opinion of Dr. Mallgren and Mr. Cordero “is not

consistent with or supported by the treatment record.” (R. 24). Instead, the ALJ found that

the social limitations included in the RFC determination were adequate to address

Plaintiff’s mental impairments. See id. Those limitations include (1) only occasional

interaction with coworkers and supervisors, (2) no interaction with the general public,

although the work may include contact with the public, (3) no tandem or teamwork. (R.

18).

The ALJ’s explanation for finding the MSS unpersuasive is reasonable. The ALJ

explained that Dr. Mallgren’s and Mr. Cordero’s opinion was not consistent with their own

treatment records and that the record does not support the extreme limitations indicated on

the MSS. Plaintiff’s providers checked the box for a “marked” limitation in every available

instance on the MSS form. (See R. 768-770). The areas designated as “marked” include

the ability to understand and remember simple instructions, maintain attention and

concentration for extended periods in order to perform simple tasks, and maintain socially

appropriate behavior and standard of neatness and cleanliness. (R. 768-770). The form

explains that a marked limitation means the “individual cannot usefully perform or sustain

the activity.” (R. 768).

Plaintiff argues that the evidence showed that when she was angry, her attention

was only fair. However, as the ALJ’s decision noted, during the relevant time period,

Plaintiff attended some therapy sessions where her attention span was good or even

“excellent”; her immediate, short-term, and long-term memory were noted as good or fair;

and she “was capable of good, fair, or intermittent eye contact at times.” (R. 17 (citing

exhibits); R. 20-22 (discussing treatment records)). She generally demonstrated adequate

or better grooming and was appropriately dressed. (R. 18 (citing exhibits); R. 20-22).

Furthermore, the ALJ noted several instances when Plaintiff stated that medications were

helping with her anger. (R. 17, 19, 24, 25). Thus, the ALJ reasonably concluded that the

MSS is not persuasive. Simmons v. Colvin, 635 F. App’x 512, 515–16 (10th Cir. 2015)

(an ALJ properly rejects an opinion when the medical source’s impairment ratings on

forms are more extreme than their own treatment notes suggest).

Additionally, the opinions of state agency reviewing consultants, Cynthia

Kampschaefer, Ph.D. and Bruce Lochner, Ph.D., support the RFC determination. They

determined that Plaintiff is “able to relate to supervisors on a superficial work basis” and

“not able to relate to the general public.” (R. 81, 101). The ALJ explained that the state

agency psychiatric opinions were persuasive, but additional limitations were included in

the RFC determination based on medical and mental health records not available to the

agency reviewers. (R. 23 (explaining that “superficial” was not included in the RFC

because it is not a vocationally defined term)). Thus, substantial evidence supports the

social-interaction limitations in the RFC.

Plaintiff contends that the ALJ ignored certain other medical evidence. The ALJ is

not required to discuss every piece of evidence in the record; rather, the ALJ must discuss

the uncontroverted evidence she chooses not to rely upon, as well as significantly probative

evidence she rejects. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Plaintiff

points to a Client Assessment Record (CAR), dated April 4, 2019, assessing severe

problems in areas including feeling/mood/affect, thinking/mental process, and

interpersonal issues. (R. 629-636). The CAR relates Plaintiff’s statements that she had

severe difficulties with controlling her emotions, short-term memory, and interpersonal

relationships, among other symptoms. (See R. 629).

Under the applicable regulations, CAR evidence is not a medical opinion. Medical

opinions are defined as “statement[s] from a medical source about what [the claimant] can

still do despite [their] impairment(s). . . .” 20 C.F.R. § 416.913(a)(2). Rather, CAR scores

are considered “[o]ther medical evidence,” i.e., “judgments about the nature and severity”

of a patient’s impairments. 20 C.F.R. § 416.913(a)(3). As such, the ALJ was not required

to articulate the persuasiveness of this evidence. 20 C.F.R. § 416.920c(b).

The ALJ’s decision noted “treatment records contain[ing] reports of events when

[Plaintiff] became angry,” reports by Plaintiff that “she said whatever was on her mind,

and not everyone liked that,” she “argued with clerical staff regarding a canceled

appointment and she expressed wanting to ‘reach across there and punch’ . . . staff in the

face.” (R. 17; see also id. (citing R. 629) (discussing notation of impaired recent and poor

immediate recall)). The focus of a disability determination is on the functional

consequences of a condition, not the mere diagnosis. See Coleman v. Chater, 58 F.3d 577,

579 (10th Cir. 1995); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere

diagnosis of arthritis, of course, says nothing about the severity of the condition.”). In this

context, Plaintiff has failed to show that a more-detailed discussion of the CAR evidence

was needed. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“The burden of showing

that an error is harmful normally falls upon the party attacking the agency’s

determination.”).

Plaintiff also cites Global Assessment of Functioning (GAF) scores from her

treatment record at the Grand Lake clinic. The GAF scores that Plaintiff cites appear on

paperwork for insurance authorization for treatment. (R. 632-636 (score of 41); R. 722

(score of 40)). The ALJ’s failure to discuss the GAF score does not constitute reversible

error in itself. In an unpublished opinion, the Tenth Circuit has noted that, “[w]hile a GAF

score may be of considerable help to the ALJ in formulating the RFC, it is not essential to

the RFC’s accuracy.” Lopez v. Barnhart, 78 F. App’x 675, 678 (10th Cir. 2003)

(quoting Howard v. Comm'r of Soc. Sec. 276 F.3d 235, 241 (6th Cir.2002) (an “ALJ’s

failure to reference the GAF score in the RFC, standing alone, does not make the RFC

inaccurate”).

Plaintiff contends the GAF scores are consistent with, and therefore support, the

MSS completed by Dr. Mallgren and Mr. Cordero. The Court notes that GAF scores of 40

and 41 may indicate significant limitations in one or more areas of mental functioning.

See Lopez, 78 F.3d at 677-78 (citing American Psychiatric Assoc., Diagnostic and

Statistical Manual of Mental Disorders 32-34 (Text Rev. 4th ed. 2000) (noting that a GAF

of 31–40 indicates “[s]ome impairment in reality testing or communication . . . OR major

impairment in several areas, such as work . . . , family relations, [or] judgment,” while a

GAF of 41–50 indicates “[s]erious symptoms . . . OR any serious impairment in social or

occupational . . . functioning”). Additionally, the Tenth Circuit has held that such scores,

“though not determinative of a claimant’s ability to work, are relevant to an ALJ’s

determination of whether a medical opinion is consistent with the medical record.” Guice

v. Comm’r, SSA, 785 F. App’x 565, n.5 (10th Cir. 2019).

Accordingly, an explicit acknowledgment of the GAF scores would have been

desirable in the interest of thoroughness. However, while the ALJ was required to consider

these scores, “there is a distinction between what an adjudicator must consider and what

the adjudicator must explain in the disability determination or decision.” Id. (quoting SSR

06–03p, 2006 WL 2329939 at *6 (rescinded on other grounds)). The ALJ’s decision need

not be remanded on this basis. See Luttrell v. Astrue, 453 F. App’x 786 (10th Cir. 2011)

(“While it may have been preferable for the ALJ to have specifically recited why he chose

to disregard the GAF scores, it is enough that “the discussion of the evidence in the . . .

decision allows a . . . subsequent reviewer to follow the [ALJ’s] reasoning.”).

Here, based on the Court’s review of the record as a whole, discussion of the GAF

scores would have added little, if any, value to the ALJ’s analysis. The GAF scores appear

with little context or explanation. (See R. 634, 722). Moreover, these scores accompany

treatment notes that include substantial evidence supporting the RFC determination, as

discussed above. The ALJ’s decision reflects a thorough consideration of the record as a

whole, including Plaintiff’s mental health treatment by Dr. Mallgren and Mr. Cordero. (See

R. 16-24). In this context, where the ALJ referenced the same set of treatment records

extensively throughout her decision, the ALJ’s failure to note Plaintiff’s GAF scores was

not reversible error. Id.

The ALJ’s decision reasonably explained her reasons for rejecting the MSS and

opinion of Dr. Mallgren and Mr. Cordero. The fact that a different adjudicator might have

weighed the evidence differently is not a basis for reversal, because the responsibility for

determining the weight of the evidence rests with the ALJ. Where substantial evidence

supports the ALJ’s decision, as it does here, the Court may not re-weigh the evidence. See

Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007) (on appeal, court reviews only

sufficiency of evidence, not its weight); Lax, 489 F.3d at 1084 (court may not reweigh

evidence and displace agency choice between two fairly conflicting views).

C. Time Off-Task

Plaintiff argues that the RFC condition that she would be off-task for ten percent of

a workday, due to her migraine headaches, lacks substantial supporting evidence in the

record. First, she contends that the ten-percent allowance is not consistent with her

symptoms, to the extent that it would allow her to be off-task for only six minutes out of

each hour. Second, she argues that, if she required a single break consisting of ten percent

of a workday (i.e., 48 minutes in an eight-hour workday), competitive employment would

be precluded.

The RFC is an administrative finding within the sole purview of the ALJ. See 20

C.F.R. § 404.1546(c) (ALJ is responsible for assessing RFC); Young v. Barnhart, 146 F.

App’x 952, 955 (10th Cir. 2005) (unpublished) (“The determination of RFC is an

administrative assessment, based upon all the evidence of how the claimant’s impairments

and related symptoms affect her ability to perform work-related activities . . . . The final

responsibility for determining RFC rests with the Commissioner, based upon all the

evidence in the record, not only the relevant medical evidence.”). In order to survive

judicial review, the ALJ’s RFC findings need only be legally sound and supported by

substantial evidence—a threshold that is “not high.” Biestek, 139 S. Ct. at 1154.

Here, the time-off-task limitation was reasonable given the evidence of record. For

example, the ALJ’s decision explained that Plaintiff started taking a medication for

migraines but stopped the medication shortly thereafter. (R. 16). As noted supra Part IV.A,

Plaintiff’s medical records did not show a pattern of frequent treatment for long-lasting

headaches, a physician noted that her headaches were “not intractable,” and Plaintiff

testified that she does not take any preventive medication for migraines. Additionally, the

state agency reviewing physicians, Dr. Kanaa and Dr. Rousseau, did not include any time-

off-task limitation in their opinions that Plaintiff can perform medium-exertion work. See

20 C.F.R. § 404.1513a(b)(1) (state agency psychologist are “highly qualified experts in

Social Security disability evaluation”).

Accordingly, substantial evidence supports the ALJ’s finding that Plaintiff has the

RFC with an allowance for ten percent time-off-task. The Court cannot properly disturb

this finding. Furthermore, the ALJ was not required to specify whether the ten-percent

allowance for time-off-task would be taken in six-minute increments, a single 48-minute

increment, or otherwise. As the ALJ’s decision explained, the “Selected Characteristics of

Occupations do[es] not address time off task, absences, extreme heat, frequency of

interaction with others, and tandem or team work; therefore, for these limitations, the [VE]

testified that she based her opinion on her twenty-five years of experience as a vocational

counselor.” (R. 26, 64-65). The ALJ appropriately accepted the VE’s testimony “based on

her expertise and experience” as to the limitations not addressed in the DOT and SCO. (R.

26). See SSR 00-4P, 2000 WL 1898704, at *3 (Dec. 4, 2000) (“Information about a

particular job’s requirements or about occupations not listed in the DOT may be available

in other reliable publications, information obtained directly from employers, or from a

VE’s . . . experience in job placement or career counseling.”).

D. Step Five

Plaintiff argues that the ALJ failed to adequately support her findings at step five.

After eliciting testimony from the VE in response to the operative hypothetical, the ALJ

further questioned the VE regarding additional limitations in connection with Plaintiff’s

migraines. Specifically, the ALJ inquired (i) how much an individual could be “off task”

and still maintain employment, and (ii) how often an individual could miss work and

maintain employment. The VE provided testimony as to the maximum tolerance for each

of these conditions.

However, Plaintiff objects that the VE did not testify as to the jobs available to an

individual with both allowances in combination—i.e., ten percent off-task and one absence

per month. In order for the VE’s testimony to constitute substantial evidence at step five,

the hypothetical question must relate with precision all of a claimant’s impairments. See

Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991). Here, the relevant hearing

testimony is as follows:

Q: So, I know typically to do work, an individual needs to

concentrate and attend for two-hour segments. If an individual is

able to concentrate and attend for only one-hour segments, is that

work[-]preclusive?

A [by VE]: Yes.

Q: How much can an individual be off task and still work, in your

opinion?

A: Fifteen percent. Anything greater on a regular basis would

preclude employment.

Q: And how much can someone miss work and still work?

A: Particularly in unskilled work, one day a month. If one is

consistently absent more than that, they would not be able to

maintain competitive employment.

. . .

Q: And what did you base your opinion in these areas on?

A: My 25 years’ experience as a vocational counselor.

(R. 64).

Notably, this discussion immediately followed the VE’s testimony that an

individual with Plaintiff’s RFC (in all other respects) could perform jobs such as hospital

cleaner, machine packager, and warehouse worker. (R. 62-63). The VE gave no indication

that either of these additional allowances—either individually or in combination—would

affect her earlier answers to the ALJ’s hypothetical questions. To the contrary, the order of

the VE’s responses indicates that her earlier testimony stands, as long as allowances for

time off-task and absences do not exceed the maximum parameters she identified. As such,

the ALJ appropriately relied on the VE’s testimony to support the alternative work findings

at step five.

Plaintiff suggests that the combination of the two conditions in the RFC might

preclude all work. However, this contention is mere speculation, and neither the VE’s

statements nor common sense supports it. See Sanders, 556 U.S. at 409-10 (“[T]he burden

of showing that an error is harmful normally falls upon the party attacking the agency’s

determination.”); Keyes-Zachary, 695 F.3d at 1166 (a court reviewing an ALJ’s decision

under § 405(g) “should, indeed must, exercise common sense. . . . [W]e cannot insist on

technical perfection.”’); see also Moua v. Colvin, 541 F. App’x 794, 798 (10th Cir. 2013)

(citation omitted) (“No principle of administrative law or common sense requires us to

remand a case in quest of a perfect opinion unless there is reason to believe that the remand

might lead to a different result.”). Accordingly, the Court finds no need to remand this case

for further development of the VE’s testimony.

V. Conclusion

The undersigned finds the ALJ’s decision is supported by substantial evidence and

that the ALJ applied the correct legal standards. Accordingly, the decision of the

Commissioner finding Plaintiff not disabled is affirmed.

ORDERED this 22nd day of March, 2022.

Unrintwre 2 tiblee

Christine D. Little

United States Magistrate Judge

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