# Vaughn v. Social Security Administration

> District Court, N.D. Oklahoma · March 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10386869

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** March 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386869. Public record. Not legal advice.