Cresap v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

AMY L. C., )

)

Plaintiff, )

)

v. )

Case No. 20-cv-00350-SH

)

KILOLO KIJAKAZI,1 Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), Plaintiff Amy L. C. requests judicial review of the

decision of the Commissioner of Social Security (“Commissioner”) denying her claim for

disability benefits under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C.

§§ 401-434, 1381-1383f. In accordance with 28 U.S.C. § 636(c), the parties have

consented to proceed before a United States Magistrate Judge. For the reasons explained

below, the Court AFFIRMS the Commissioner’s decision denying benefits.

I. Disability Determination and Standard of Review

Under the Act, a “disability” is defined 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 death or which has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also id. §

1382c(a)(3)(A) (regarding disabled individuals). The impairment(s) must be “of such

severity that [the claimant] is not only unable to do h[er] previous work but cannot,

considering h[er] age, education, and work experience, engage in any other kind of

1 Effective July 9, 2021, pursuant to Fed. R. Civ. P. 25(d), Kilolo Kijakazi, Acting

Commissioner of Social Security, is substituted as the defendant in this action. No further

action need be taken to continue this suit by reason of 42 U.S.C. § 405(g).

substantial gainful work which exists in the national economy . . . .” Id. §§ 423(d)(2)(A),

1382c(a)(3)(B).

Social Security regulations implement a five-step sequential process to evaluate

disability claims. 20 C.F.R. § 404.1520.2 “If a determination can be made at any of the

steps that a claimant is or is not disabled, evaluation under a subsequent step is not

necessary.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Under the five-step

process, the Commissioner inquires into: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant suffers from a severe medically

determinable impairment(s); (3) whether the impairment meets or equals a listed

impairment from 20 C.F.R. pt. 404, subpt. P, app. 1; (4) considering the Commissioner’s

assessment of the claimant’s residual functional capacity (“RFC”), whether the claimant

can still do her past relevant work; and (5) considering the RFC and other factors, whether

the claimant can perform other work. Id. § 404.1520(a)(4)(i)-(v). Generally, the claimant

bears the burden of proof for the first four steps. Bowen v. Yuckert, 482 U.S. 137, 146 n.5

(1987). At the fifth step, the burden shifts to the Commissioner to provide evidence that

other work the claimant can do exists in significant numbers in the national economy. 20

C.F.R. § 404.1560(c)(2).3

Judicial review of the Commissioner’s final decision is limited to determining

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

decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257,

1261 (10th Cir. 2005). The “threshold for such evidentiary sufficiency is not high.” Biestek

2 See generally 20 C.F.R. § 416.920 for Title XVI. (Where possible, the body of this

opinion will reference the Title II regulation and provide, the first time mentioned, a

parallel citation for Title XVI.)

3 See generally 20 C.F.R. § 416.960 for Title XVI.

v. Berryhill, 139 S. Ct. 1148, 1154 (2019). It is more than a scintilla but means only “such

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

conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The

Court will “meticulously examine the record as a whole, including anything that may

undercut or detract from the ALJ’s findings in order to determine if the substantiality test

has been met,” Grogan, 399 F.3d at 1262, but it will neither reweigh the evidence nor

substitute its judgment for that of the Commissioner, Bowman v. Astrue, 511 F.3d 1270,

1272 (10th Cir. 2008). Even if a court might have reached a different conclusion, the

Commissioner’s decision stands if it is supported by substantial evidence. See White v.

Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

II. Background and Procedural History

In December 2016, Plaintiff applied for Title II and Title XVI disability benefits.

(R. 23, 295-302.) Plaintiff initially alleged that she had been unable to work since January

2, 2015, due to depression, anxiety disorder, attention deficit hyperactivity disorder

(“ADHD”), and a brain injury.4 (R. 295, 297, 350-51.) Plaintiff was 49 years old on the

date of the ALJ’s decision. (R. 33, 295, 297.) She has a college education and past relevant

work as a housekeeping cleaner. (R. 64-65, 351.)

Plaintiff’s claims for benefits were denied initially and on reconsideration, and she

requested a hearing. (R. 89-118, 144-45.) ALJ Christopher Hunt conducted two

administrative hearings and issued a decision on November 13, 2019, finding Plaintiff not

disabled. (R. 23-33, 41-88.) The Appeals Council denied review on May 29, 2020 (R. 1-

6), rendering the Commissioner’s decision final. 20 C.F.R. §§ 404.981, 416.1481. Plaintiff

4 In her briefing, Plaintiff concedes she was not disabled in 2015 or 2016 and asserts that she

became disabled on January 1, 2017. (ECF No. 16 at 6-7, 14; ECF No. 25 at 2.)

timely filed this appeal on July 21, 2020 (ECF No. 2), within 65 days of that order. See

20 C.F.R. § 422.210(c).

The parties have fully briefed the issues, and this appeal is ripe for ruling.5

III. The ALJ’s Decision

In his decision, the ALJ found Plaintiff met the insured status requirements of the

Act through December 31, 2023. (R. 25.) At step one, the ALJ concluded that Plaintiff

engaged in substantial gainful activity in calendar years 2016, 2017, and 2018, but that

there had been a continuous 12-month period(s) during which Plaintiff did not engage in

substantial gainful activity. (R. 26.) At step two, the ALJ found Plaintiff had the severe

impairments of major depressive disorder and generalized anxiety disorder. (Id.) At step

three, the ALJ found Plaintiff’s impairments did not meet or equal a listed impairment.

(R. 26-28.)

The ALJ then determined Plaintiff had the RFC to perform a full range of work at

all exertional levels with the following non-exertional limitations: “The claimant has the

ability to perform detailed tasks, reasoning at level three (3) and below. She can have

occasional contact with coworkers, supervisors, and superficial contact with the general

public.” (R. 28.) The ALJ provided a summary of the evidence that went into this finding.

(R. 28-32.)

At step four, based on the testimony of a vocational expert (“VE”), the ALJ

concluded that Plaintiff could return to her past relevant work as a housekeeping cleaner.

(R. 32-33.) The ALJ thus found Plaintiff was not disabled. (R. 33.)

5 The Court notes, however, that Plaintiff’s reply brief was four times the length allowed

by the Scheduling Order (ECF No. 15 at 2). Plaintiff’s counsel is cautioned that briefs

violating this Court’s rules or orders are subject to being stricken.

IV. Issues

Plaintiff asserts the ALJ erred by: (i) concluding Plaintiff engaged in substantial

gainful activity in 2017 and 2018 (ECF No. 16 at 2, 7-8); (ii) failing to properly evaluate

the medical opinions of treating physician Dr. Dominic Losacco and consultative

examiner Dr. Larry Vaught (id. at 3-5, 7, 9-14); (iii) failing to consider all her impairments

at step two (id. at 2, 7-8); (iv) failing to consider Listing 12.11 for neurodevelopmental

disorders at step three (id. at 2-3, 7-9); (v) failing to consider and account for all her

impairments in the RFC assessment (ECF No. 25 at 10-12); and (vi) concluding that her

prior work as a housekeeping cleaner qualified as past relevant work (ECF No. 16 at 13).6

The Court finds no reversible error in the ALJ’s decision.

V. Analysis

A. Any Substantial Gainful Activity Error was Harmless.

At step one of the sequential process, the ALJ considers the claimant’s “work

activity, if any.” 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaged in substantial

gainful activity (“SGA”), the ALJ will find that the claimant is not disabled. Id.

Substantial gainful activity is “work activity that involves doing significant physical or

mental activities . . . that [a claimant does] for pay or profit.” Id. § 404.1572(a)-(b).7 For

a self-employed person, the ALJ first determines if the claimant rendered services that

are significant to the operation of the business and receives a substantial income from

that business. 20 C.F.R. § 404.1575(a)(2)(i).8 Where the claimant operates the business

entirely by herself, any services she renders are significant. Id. § 404.1575(b)(1). To

6 Plaintiff’s arguments have been reorganized for clarity.

7 See generally 20 C.F.R. § 416.972 for Title XVI.

8 See generally 20 C.F.R. § 416.975 for Title XVI.

determine the actual value of work performed, the ALJ looks at the claimant’s gross

income and then deducts certain expenses and the value of significant unpaid help, if any.

Id. § 404.1575(c)(1). In this case, there is no evidence of any such expenses or unpaid

help. Instead, the ALJ and all parties have simply looked at Plaintiff’s self-employment

income as reported on her FICA earnings. (R. 26; ECF No. 16 at 2, 8; ECF No. 21 at 9.)

Therefore, the ALJ will find this countable income to be substantial if it averages more

than the amounts listed in § 404.1574(b)(2).9

Generally, if the claimant’s work as an employee or as a self-employed person was

continuous without significant change in work patterns or earnings, the ALJ will average

the claimant’s earnings over each period for which a different SGA earnings level

applies.10 Id. § 404.1574a(a)-(b).11 If the average monthly earnings exceed a prescribed

threshold, substantial gainful activity is presumed. Id. § 404.1574(b)(2)(ii). Conversely,

if they are equal to or below the threshold amount, the claimant is presumed not to be

engaged in substantial gainful activity—at least for employees.12 Id. § 404.1574(b)(3)(1);

see also Sheppard v. Astrue, 426 F. App’x 608, 610 (10th Cir. 2011) (unpublished) (the

regulations not only “raise a presumption in favor of a finding of SGA if the claimant’s

average monthly earnings exceed the threshold level . . . [they] also raise a presumption

9 See generally 20 C.F.R. § 416.974 for Title XVI.

10 If there was a significant change in the work pattern or earnings, then the ALJ would

average the earnings over each separate period of work. 20 C.F.R. § 404.1574a(c).

11 See generally 20 C.F.R. § 416.974a for Title XVI.

12 For the self-employed, there are additional considerations that may result in a finding

of substantial gainful activity, even if the average is less than the threshold amount. See

20 C.F.R. § 404.1575(c)(2)(ii).

against a finding of SGA if the claimant’s average monthly earnings are below the

threshold level”).13

Plaintiff contends the ALJ erred in determining she engaged in substantial gainful

activity in 2017 and 2018, because her earnings did not exceed the average monthly

income threshold amounts in either year. (ECF No. 16 at 7-8.) In calendar years 2017

and 2018, an average monthly income of $1,170.00 and $1,180.00, respectively,

constituted substantial gainful activity for non-blind individuals. See 20 C.F.R.

§ 404.1574(b)(2); Program Operations Manual System (“POMS”) DI 10501.015(B).

Plaintiff’s 2017 annual income was $13,677.00.14 (R. 334.) Assuming Plaintiff worked

continuously throughout 2017, this would result in an average monthly income of

$1,139.75—less than the $1,170.00 threshold.15 Using the same assumptions, Plaintiff’s

2018 earnings of $13,067.00 (R. 26, 334), would result in an average monthly income of

$1,088.92—less than the $1,180.00 threshold for that year. Under these calculations

Plaintiff did not engage in substantial gainful activity in 2017 or 2018.

The Commissioner concedes Plaintiff may not have engaged in substantial gainful

activity in 2017 and 2018 but asserts any error the ALJ made in calculating Plaintiff’s

earnings was harmless because: (1) the ALJ considered the whole record, including the

evidence from 2016 through 2019; (2) the ALJ proceeded to consider Plaintiff’s disability

claim through subsequent steps of the sequential analysis; and (3) the reasons the ALJ

gave for finding Plaintiff not disabled during the relevant period would also apply to

13 Unpublished decisions are not precedential, but they may be cited for their persuasive

value. 10th Cir. R. 32.1(A).

14 The ALJ found the income to be $13,067.00. (R. 26.)

15 The ALJ made no findings regarding the continuous nature of Plaintiff’s work.

calendar years 2017 and 2018, because Plaintiff did not allege that her condition

materially changed. (ECF No. 21 at 9.)

The Court agrees any step-one error was harmless. The ALJ did not deny Plaintiff’s

disability claim at step one, and he proceeded to consider Plaintiff’s claim through

subsequent steps of the sequential analysis, including assessing her RFC. See Dickison v.

Colvin, No. CIV-13-1022-F, 2014 WL 4418117, at *4 (W.D. Okla. Sept. 8, 2014) (“Because

the ALJ proceeded past step one to determine whether or not Plaintiff was disabled, any

error in the ALJ’s step one determination is harmless.”). Furthermore, the ALJ

considered evidence from 2017 and 2018 as part of his RFC analysis and ultimately found

Plaintiff was not disabled from January 2, 2015, through November 13, 2019, a period

that includes both challenged years.16 (R. 29-33.) Because the ALJ considered all the

evidence of record and concluded Plaintiffs’ RFC did not preclude the performance of her

past relevant work from her initial alleged onset date through the date of his decision , no

reasonable factfinder could then have found Plaintiff “disabled”—even without

substantial gainful work activity in 2017 and 2018. See Allen v. Barnhart, 357 F.3d 1140,

1145 (10th Cir. 2004) (a finding of harmless error is appropriate where the court can

confidently say no reasonable administrative factfinder, following the correct analysis,

could have resolved the factual matter in any other way).

16 Earlier in his decision, the ALJ stated, “The remaining findings address the period(s)

the claimant did not engage in substantial gainful activity.” (R. 26.) However, as this

discussion illustrates, the ALJ went on to consider evidence throughout the entire

period—including during the years he found Plaintiff to have engaged in substantial

gainful activity. As such, the Court finds this stray statement does not negate the impact

of the ALJ’s subsequent findings.

B. The ALJ Did Not Err in His Consideration of Medical Opinions.

Plaintiff’s remaining arguments generally relate to the ALJ’s analysis of the

evidence at steps two, three, and four—primarily stemming from the ALJ’s treatment of

the medical opinions of Dr. Losacco and Dr. Vaught.

1. The Medical Evidence

Dr. Losacco managed Plaintiff’s medications for major depressive disorder,

anxiety disorder with panic symptoms, and ADHD from January 2014 through January

2019. (R. 443-53, 458-59, 508-10, 568-71.) On January 16, 2018, Dr. Losacco completed

a form titled “Mental Capacity Assessment,” noting Plaintiff’s diagnoses as major

depression and adult ADHD. (R. 503-05.) Dr. Losacco opined that Plaintiff had an

“extreme” limitation in 14 of the 22 functional areas he assessed, including her ability to

understand, remember, and carry out detailed instructions; to maintain attention and

concentration for extended periods; and to accept instructions and respond appropriately

to criticism from supervisors. (Id.) Dr. Losacco also opined that Plaintiff had a “marked”

limitation in six functional areas, including her ability to work in coordination with or in

proximity to others without being distracted by them; to make simple work-related

decisions; and to respond appropriately to changes in the work setting. (Id.)

In a letter dated April 25, 2019, Dr. Losacco stated Plaintiff was somewhat

disorganized, inattentive, and impulsive; that her ability to complete tasks was impaired;

and that her multiple head traumas may have contributed to some of her cognitive

disabilities. (R. 573.) He was hopeful Plaintiff would “have some further degree of

improvement” with regular treatment but indicated it was “unlikely [she] would be able

to become gainfully employed, at least in the near future.” (Id.)

Dr. Vaught performed a consultative neuropsychological examination of Plaintiff

on March 5, 2018, that included cognitive testing. (R. 551-55.) Dr. Vaught diagnosed

Plaintiff with mild neurocognitive disorder, unspecified anxiety disorder with panic

symptoms, and chronic adjustment disorder with depressed mood. (R. 554.) Dr. Vaught

also completed a form titled “Medical Source Statement of Ability to do Work-Related

Activities (Mental).” (R. 556-58.) He opined that Plaintiff was moderately limited in her

ability to understand, remember, and carry out complex instructions; and mildly limited

in her ability to understand, remember, and carry out simple instructions and to make

judgments on complex work-related decisions. (R. 556.) Dr. Vaught referenced the

results of Plaintiff’s cognitive testing as support for these limitations. (R. 555-56, 559.)

Dr. Vaught further opined that Plaintiff was markedly limited in her ability to interact

appropriately with the public and moderately limited in her ability to interact

appropriately with supervisors and co-workers, and to respond appropriately to usual

work situations and changes in a routine work setting. (R. 557.) Dr. Vaught explained

that Plaintiff’s treatment with “multiple psychotropics,” difficulty in crowds, proneness to

anxiety with panic symptoms in crowds, and fatigue supported the adaptation and social

interaction limitations he identified. (Id.)

2. The ALJ’s Treatment of Dr. Losacco’s Opinions

Plaintiff contends the ALJ erred in evaluating Dr. Losacco’s opinions, because he

failed to consider the relevant factors in his analysis of such opinions and improperly

relied on Plaintiff’s failure to seek counseling or more extensive treatment to discredit

them. (ECF No. 16 at 3-5, 9-14.)

For claims filed before March 27, 2017, the ALJ must give a treating physician’s

medical opinion controlling weight if it “is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with other substantial

evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).17 When a treating physician’s

opinion is not given controlling weight, the ALJ must explain what weight, if any, he

assigned to the opinion after considering the pertinent factors. Watkins v. Barnhart, 350

F.3d 1297, 1300-01 (10th Cir. 2003). Those factors are: (1) the examining relationship;

(2) the length, nature, and extent of the treatment relationship and frequency of

examination; (3) the degree to which the medical source presents relevant evidence to

support the opinion; (4) the opinion’s consistency with the record as a whole; (5) the

specialization of the medical source; and (6) any other factors that may support or

contradict the opinion. 20 C.F.R. § 404.1527(c)(1)-(6). After considering these factors,

the ALJ must provide “good reasons” for the weight assigned to a treating physician’s

opinion, and “specific, legitimate reasons” if he completely rejects it. Watkins, 350 F.3d

at 1301. The ALJ is not required to discuss every factor when deciding how much weight

to give a treating physician’s opinion, as not every factor will apply in every case. See

Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). In sum, the ALJ’s decision must

be “sufficiently specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the reasons for that weight.”

Id. (quoting Watkins, 350 F.3d at 1300).

Although the ALJ did not use the exact wording from the regulation, it is clear from

his decision that he did not give Dr. Losacco’s opinions controlling weight. (See R. 32

(finding the opinions “not persuasive”).) As part of this finding, the ALJ determined that

Dr. Losacco’s opinions were “inconsistent with . . . medical evidence of record.” (R. 32.)

17 See generally 20 C.F.R. § 416.927 for Title XVI.

This finding was supported by substantial evidence—Dr. Losacco’s numerous marked and

extreme limitations were inconsistent with the opinions of Dr. Vaught, who identified

only one marked limitation and no extreme limitations. (R. 556-58.). Therefore, the ALJ

did not err in declining to give Dr. Losacco’s opinions controlling weight. See 20 C.F.R.

§ 404.1527(c)(2) (requiring an opinion be both well-supported by medically acceptable

clinical techniques and consistent with other substantial evidence in the record).18

The ALJ also sufficiently considered the relevant factors in rejecting Dr. Losacco’s

opinions as not persuasive—including the examining relationship, the treatment

relationship, and consistency. See 20 C.F.R. § 404.1527(c)(1)-(2), (4). The ALJ

acknowledged that Dr. Losacco treated Plaintiff with psychotropic medications for

depression, ADHD, and panic disorder between January 2014 and April 2019. (R. 29.)

In so doing, the ALJ considered the examining relationship factor as well as the length,

nature, and extent of the treatment relationship factor.

The ALJ also cited the inconsistency between Dr. Losacco’s opinions and the

treatment he provided to Plaintiff. (R. 32.) In reaching this conclusion, the ALJ

determined that Dr. Losacco’s treatment consisted of “routine medication management.”

(Id.) This is an accurate description of the longitudinal treatment provided by Dr.

Losacco. (See, e.g., R. 443-53, 568-71.) Contrary to Plaintiff’s assertion, a physician’s

prescribed course of treatment is an appropriate consideration as to the nature and extent

of treatment. See Arterberry v. Saul, 743 F. App’x 227, 229 (10th Cir. 2018)

18 The ALJ would also have been hard-pressed to find Dr. Losacco’s opinions well-

supported by medically acceptable clinical techniques, given that Dr. Losacco did not

provide any medical/clinical findings in support of the numerous marked and extreme

limitations he identified on the Mental Capacity Assessment form despite explicit

instructions to do so. (R. 503-05.)

(unpublished) (“[T]he ALJ accurately noted that Dr. Brown’s treatment plan was limited

to medication management. The nature and extent of the treatment provided are

legitimate grounds for assessing the weight of a treating physician’s opinion.”); Dixon v.

Colvin, 556 F. App’x 681, 682-83 (10th Cir. 2014) (unpublished) (finding substantial

evidence supported ALJ’s decision to assign minimal weight to a treating physician’s

“extreme limitations” because such limitations were inconsistent with “the limited mental

health treatment [the physician] prescribed”).

The ALJ further explained that Dr. Losacco’s opinions were inconsistent with the

medical evidence of record. (R. 32.) The ALJ specifically discussed Plaintiff’s emergency

room visit following her most recent motor vehicle accident in April 2015, noting Plaintiff

experienced some confusion initially but was easily oriented, and that her confusion

resolved before she was discharged the same day. (Id.) Elsewhere in the decision, the

ALJ also accurately noted that the imaging revealed no significant head injury. (R. 29.)

Thus, the ALJ explained the inconsistencies between Dr. Losacco’s opinions and the

record as a whole, and his reasons for finding Dr. Losacco’s opinions not persuasive are

sufficiently specific. Cf. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004)

(“Because the ALJ failed to explain or identify what the claimed inconsistencies were

between Dr. William’s opinion and the other substantial evidence in the record, his

reasons for rejecting that opinion are not ‘sufficiently specific’ to enable this court to

meaningfully review his findings.”).

Lastly, the ALJ found Dr. Losacco’s opinions inconsistent with Plaintiff’s failure to

pursue more extensive mental health treatment, such as counseling or inpatient

treatment. (R. 32.) Plaintiff does not dispute the ALJ’s characterization of Dr. Losacco’s

treatment as routine medication management. Rather, Plaintiff contends it was error for

the ALJ to draw a negative inference from her failure to participate in counseling, because

Dr. Losacco never recommended counseling and the ALJ did not explore whether she had

an acceptable reason for her limited treatment.19 (ECF No. 16 at 10, 13-14.)

Notably, the ALJ did address the limited medical records at the January 2018

administrative hearing, and he ordered a consultative examination because Plaintiff’s

case was “very poorly developed.” (R. 72, 86-88.) Plaintiff’s attorney agreed the record

did not contain “a whole lot of records from Dr. Losacco” and explained this was due to

Plaintiff’s tardiness in returning a records release form. (R. 72.) The ALJ then asked

Plaintiff why “she had not been pursuing the development of the record,” and Plaintiff

explained she thought she was going to get a job.20 (R. 73.) Despite the opportunity to do

so at the administrative hearings and in the briefing, neither Plaintiff nor her counsel

identified any reasons for Plaintiff’s limited treatment that the ALJ ignored. See Wilson

v. Astrue, 602 F.3d 1136, 1149 (10th Cir. 2010) (noting the ALJ should ordinarily be

entitled to rely on claimant’s counsel to structure and present the case such that

claimant’s claims are adequately explored). In any event, Plaintiff's failure to pursue more

extensive treatment was not the sole reason the ALJ discounted Dr. Losacco’s opinions.

19 Plaintiff cites to Social Security Ruling (“SSR”) 96-7p as support for this contention.

For decisions “on or after March 28, 2016,” SSR 96-7p has been superseded by SSR 16-

3p. SSR 16-3p, 2017 WL 5180304, at *1 (October 25, 2017). Regardless, the Court notes

SSR 16-3p similarly provides that the ALJ “will not find an individual’s symptoms

inconsistent with the evidence” due to a lack of treatment “without considering possible

reasons he or she may not . . . seek treatment consistent with the degree of his or her

complaints.” Id., at *9.

20 Notably, after the January 2018 hearing, Plaintiff submitted additional records from

Dr. Losacco. (See R. 507, 572.) These records are consistent with the earlier records,

showing primarily medication management by Dr. Losacco and no recommendation that

Plaintiff seek additional treatment. (R. 508-10, 568-71.) There is no indication that any

other records from Dr. Losacco existed that were not provided to the ALJ before his

decision.

As set forth above, the ALJ provided two additional reasons, supported by the record, for

finding Dr. Losacco’s opinion not persuasive.

Based on the foregoing, the Court finds the ALJ's decision is “sufficiently specific”

to make clear to this Court and subsequent reviewers the weight he assigned to Dr.

Losacco’s opinions and the reasons for that weight. Oldham, 509 F.3d at 1258. The ALJ

did not commit reversible error in his consideration of Dr. Losacco’s opinions.

3. The ALJ’s Treatment of Dr. Vaught’s Opinions

The ALJ must also determine the weight to be accorded to the medical opinions of

examining physicians, like Dr. Vaught, using the factors set out in the regulations cited

above. “An ALJ must evaluate every medical opinion in the record, although the weight

given each opinion will vary according to the relationship between the disability claimant

and the medical professional. . . . An ALJ must also consider [the regulatory] factors in

determining what weight to give any medical opinion.” Hamlin v. Barnhart, 365 F.3d

1208, 1215 (10th Cir. 2004) (citation omitted). When the ALJ relies on an examining

physician’s opinion, “he must explain the weight he is giving to it.” Id.

Plaintiff contends the ALJ “totally ignored” Dr. Vaught’s opinions (ECF No. 16 at

13), but this is not borne out in the decision. After thoroughly summarizing Dr. Vaught’s

consultative examination findings and opinions, the ALJ stated he was “somewhat

persuaded” by Dr. Vaught’s assessment. (R. 30-31.) The ALJ then found Dr. Vaught’s

assessment was consistent with Dr. Losacco’s treatment notes, which showed only routine

medication management, and with the RFC assessment, which included skill level,

reasoning level, and social limitations. (R. 31.) Thus, the ALJ did not ignore Dr. Vaught’s

opinions, but rather relied on them when formulating the RFC. Moreover, both parties

agree that the RFC assessment is “largely consistent” with Dr. Vaught’s opinions. (ECF

No. 21 at 8; ECF No. 25 at 9.) Accordingly, further analysis of Dr. Vaught’s opinions would

not advance Plaintiff’s disability claim, and any error the ALJ made in weighing his

opinions would be considered harmless. See Keyes-Zachary v. Astrue, 695 F.3d 1156,

1163 (10th Cir. 2012) (finding the ALJ’s failure to weigh a medical opinion constituted

harmless error because the opinion was “generally consistent” with the ALJ’s RFC

determination).

C. Any Error at Step Two was Harmless.

Plaintiff argues that the ALJ failed to adequately consider her ADHD, mild

neurocognitive disorder, unspecified anxiety disorder with panic symptoms, and

adjustment disorder with depressed mood at step two of the sequential evaluation. (ECF

No. 16 at 2, 8.)

The ALJ considers the “medical severity” of a claimant’s impairments at step two

of the sequential evaluation. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is “severe” if

it significantly limits a claimant’s ability to perform basic work activities. Id.

§ 404.1520(c). A claimant who does not have a severe medically determinable

impairment, or a combination of impairments that is severe, is not disabled. Id.

§ 404.1520(a)(4)(ii).

Because the ALJ found Plaintiff had severe impairments at step two and proceeded

to the subsequent steps of his analysis, any failure in identifying additional severe

impairments does not constitute reversible error. See Allman v. Colvin, 813 F.3d 1326,

1330 (10th Cir. 2016) (“[F]ailure to find a particular impairment severe at step two is not

reversible error when the ALJ finds that at least one other impairment is severe.”);

Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became

harmless when the ALJ reached the proper conclusion that Mrs. Carpenter could not be

denied benefits conclusively at step two and proceeded to the next step of the evaluation

sequence.”).

Furthermore, “a failure to find an impairment medically determinable,” if in error,

is “obviated if the ALJ considered the non-medically determinable impairment in

assessing the RFC.” Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016) (unpublished).

As explained in Section V(E) below, the ALJ considered Plaintiff’s ADHD, mild

neurocognitive disorder, unspecified anxiety disorder with panic symptoms, and

adjustment disorder with depressed mood in the RFC assessment. The Court identifies

no reversible step-two error in the ALJ’s consideration of these conditions.

D. The ALJ’s Analysis at Step Three was Sufficient.

Plaintiff contends the ALJ erred at step three, because he failed to consider her

mental impairments under Listing 12.11 (Neurodevelopmental disorders) and ignored Dr.

Losacco’s findings when assessing the “paragraph B” criteria. (ECF No. 16 at 2-5, 8-12.)

Based on Dr. Losacco’s opinions, Plaintiff asserts that she satisfies the “paragraph B”

criteria for Listings 12.04 (Depressive, bipolar and related disorders), 12.06 (Anxiety and

obsessive-compulsive disorders), 12.11 (Neurodevelopmental disorders), and 12.15

(Trauma- and stressor-related disorders). (ECF No. 16 at 5, 12.)

At step three of the sequential evaluation, the ALJ considers whether a claimant’s

severe impairment(s) meets or equals one of the listed impairments the Commissioner

deems sufficiently severe as to preclude substantial gainful activity. See 20 C.F.R.

§ 404.1520(a)(4)(iii) & pt. 404, subpt. P, app. 1 (“the Listings”). If a claimant’s medically

severe impairment(s) meets or equals one of the listed impairments, she will be found

disabled at step three without considering her age, education, and work experience. Id.

§ 404.1520(d). In order to meet a Listing, the claimant’s impairment(s) must satisfy all

of the criteria of that Listing. Id. § 404.1525(c)(3).21 The ALJ is required “to discuss the

evidence and explain why he found that [the claimant] was not disabled at step three.”

Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, an ALJ’s failure to

adequately explain his step-three findings may constitute harmless error if the “ALJ’s

confirmed findings at steps four and five of his analysis, coupled with indisputable aspects

of the medical record, conclusively preclude Claimant’s qualification under the listings at

step three.” Fischer-Ross v. Barnhart, 431 F.3d 729, 735 (10th Cir. 2005).

At step three, the ALJ specifically considered Listings 12.04 (Depressive, bipolar

and related disorders), 12.06 (Anxiety and obsessive-compulsive disorders), and 12.15

(Trauma- and stressor-related disorders). (R. 26-27.) All three Listings include identical

“paragraph B” functional criteria, requiring evidence that the claimant has an extreme

limitation of one—or a marked limitation of two—of the following areas of mental

functioning: (1) understand, remember, or apply information; (2) interact with others;

(3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.22 20 C.F.R.

pt. 404, subpt. P, app. 1 §§ 12.04, 12.06, 12.15 (2019). The ALJ found that these

“paragraph B” criteria were not satisfied. (R. 26-28.) Plaintiff complains the ALJ did not

consider Listing 12.11 (Neurodevelopmental disorders). However, this Listing requires

the same “paragraph B” criteria as those the ALJ did consider. 20 C.F.R. pt. 404, subpt.

P, app. 1 § 12.11 (2019). As such, if the ALJ’s decision as to the other Listings was correct,

there could be no harm from not also considering (and necessarily rejecting) Listing 12.11.

21 See generally 20 C.F.R. § 416.925(c)(3) for Title XVI.

22 The three Listings also include an alternative list of “paragraph C” criteria. Id. The ALJ

found the “paragraph C” criteria were not satisfied (R. 28), a conclusion not disputed by

Plaintiff. This opinion, therefore, focuses on whether the ALJ’s decision regarding the

“paragraph B” criteria was supported by substantial evidence.

In analyzing the “paragraph B” criteria, the ALJ found Plaintiff had a moderate

limitation in interacting with others; mild limitations in understanding, remembering, or

applying information and in concentrating, persisting, or maintaining pace; and no

limitation in adapting or managing oneself. (R. 27-28.) Because Plaintiff’s mental

impairments did not result in at least one extreme limitation or two marked limitations,

the ALJ concluded that Plaintiff’s mental impairments did not satisfy the “paragraph B”

criteria. (R. 28.)

In making these determinations, the ALJ specifically discussed Plaintiff’s hearing

testimony and Dr. Vaught’s examination and opinions. (R. 26-28.) However, the ALJ

also noted that his conclusions were “supported by the discussion of the evidence as set

out in this opinion.” (R. 27.) That discussion—found later in the decision—included the

ALJ’s findings as to the comparative persuasiveness, or weight, of the opinions of Drs.

Vaught and Losacco. (R. 31-32.) As the ALJ found Dr. Losacco’s opinions not

persuasive—a finding this Court has determined was supported by substantial

evidence23—it is logical and correct that the ALJ did not then rely on Dr. Losacco’s

opinions in assessing Plaintiff under the “paragraph B” criteria. Having rejected Dr.

Losacco’s opinions, there was no basis for the ALJ to find Plaintiff markedly limited in

two areas (or extremely limited in one).

In any event, even if the ALJ had failed to sufficiently discuss the medical source

opinion evidence at step three, the ALJ’s findings after that step “conclusively negate the

possibility of any finding that Claimant is presumptively disabled under the pertinent

listing.” Fischer-Ross, 431 F.3d at 735. Any error at step three would, then, be harmless.

23 See supra Section V(B)(2).

E. The RFC Assessment is Supported by Substantial Evidence.

Plaintiff next asserts the ALJ erred in his RFC assessment, because he failed to

consider her ADHD, mild neurocognitive disorder, unspecified anxiety disorder with

panic symptoms, and adjustment disorder with depressed mood.24 The Court finds no

error in the ALJ’s analysis of these mental impairments.

The ALJ identified major depressive disorder and generalized anxiety disorder as

severe impairments, but he did not include ADHD or mild neurocognitive disorder among

Plaintiff’s medically determinable impairments at step two. (R. 26.) Nonetheless, the

ALJ thoroughly discussed Plaintiff’s hearing testimony and function report, as well as the

findings of her treating, consultative, and reviewing physicians related to these conditions

in the RFC discussion—this included the diagnoses for all four disorders Plaintiff lists and

related medical findings. (R. 28-32.) The ALJ also noted Plaintiff’s testimony that she

could not work with numbers, pay attention, or complete tasks due to multiple traumatic

brain injuries. (R. 29.) And, the ALJ noted Plaintiff’s statement on her function report

that she was unable to work due to trouble paying attention, organizing her thoughts and

activities, thinking clearly, and multi-tasking. (Id.) The ALJ then concluded that

Plaintiff’s statements about the intensity, persistence, and limiting effects of her

symptoms were inconsistent with the medical evidence of record. (R. 30.) In reaching

this conclusion, the ALJ specifically found Plaintiff’s allegations inconsistent with Dr.

24 Plaintiff did not make this specific assertion until her improperly oversized reply brief.

(ECF No. 25 at 10-11.) However, the Court addresses this argument because: (1) Plaintiff

raised the ALJ’s consideration of the opinions of Drs. Losacco and Vaught in the RFC in

her opening brief, and these physicians diagnosed the mental impairments at issue; (2)

the Commissioner argues the ALJ considered and accounted for all of Plaintiff’s mental

impairments in the RFC; and (3) the Court’s finding of harmless error at step two relies,

in part, on the ALJ’s proper evaluation of Plaintiff’s mental impairments when assessing

the RFC at step four.

Vaught’s finding that Plaintiff had no difficulty solving simple math problems and

Plaintiff’s cognitive test results showing an average score in the areas of concentration,

persistence, and pace. (Id.) The ALJ then incorporated the functional limitations

identified by Dr. Vaught into the RFC determination. (R. 28.) Thus, the ALJ considered

the evidence related to Plaintiff’s mental impairments, including ADHD and mild

neurocognitive disorder, and explained how such evidence supported the RFC

assessment. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (“The ALJ is charged

with carefully considering all the relevant evidence and linking his findings to specific

evidence.”). Accordingly, the ALJ’s decision is supported by substantial evidence, despite

any failure to identify ADHD and mild cognitive disorder as medically determinable

impairments at step two. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.

2012) (“Where, as here, we can follow the adjudicator’s reasoning in conducting our

review, and can determine that correct legal standards have been applied, merely

technical omissions in the ALJ’s reasoning do not dictate reversal . . . . [W]e cannot insist

on technical perfection.”).

F. The ALJ Did Not Err in Determining Plaintiff Could Return to

Her Past Relevant Work.

Plaintiff raises two points of error related to the ALJ’s step-four determination that

she could return to her past relevant work as a housekeeping cleaner. Plaintiff first alleges

that the ALJ failed to provide sufficient evidence regarding the availability of

housekeeping cleaner jobs in support his step-four determination. (ECF No. 16 at 13.)

Plaintiff next asserts the ALJ erred by concluding that her housekeeping cleaner job

qualified as past relevant work. (Id.)

At step four of the sequential evaluation, the ALJ considers the claimant’s RFC and

determines whether the claimant’s impairments prevent her from performing her past

relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). It is the claimant’s burden at step four

to show she is unable to perform her past relevant work “both as she actually performed

that work in the past and as it is generally performed in the national economy.” Adams

v. Colvin, 616 F. App'x 393, 394 (10th Cir. 2015) (unpublished). The claimant is not

disabled if she is able to return to her past relevant work. See 20 C.F.R.

§ 404.1520(a)(4)(iv).

1. The ALJ Was Not Required to Provide Evidence Regarding

the Availability of Housekeeping Cleaner Jobs.

Plaintiff asserts the ALJ failed to demonstrate there were housekeeping cleaner

jobs “readily available in her geographic area” of Vinita, Oklahoma. (ECF No. 16 at 13.)

This is not part of the step-four analysis of whether Plaintiff can return to her past relevant

work.25 At step four, the ALJ does not consider “vocational factors of age, education, and

work experience or whether [the claimant’s] past relevant work exists in significant

numbers in the national economy.” 20 C.F.R. § 404.1560(b)(3);26 see also Wells v. Colvin,

727 F.3d 1061, 1074 (10th Cir. 2013) (“The Commissioner need not establish that a prior

job exists in significant numbers in the national economy. . . .”). Plaintiff’s argument is

without merit.

2. Plaintiff’s Job as a Housekeeping Cleaner Qualifies as Past

Relevant Work.

Plaintiff next asserts “there was absolutely no evidence to suggest [she] was

engaged successfully in performing work as a housekeeper/cleaner.” (ECF No. 16 at 13.)

25 It is possible Plaintiff is thinking of the step-five determination as to whether there exist

other jobs that Plaintiff can do. Even then, a finding of regional availability is not required

if the jobs exist in significant numbers in the national economy. See Raymond v. Astrue,

621 F.3d 1269, 1274-75 n.2 (10th Cir. 2009) (“the relevant test [at step five] is either jobs

in the regional or jobs in the national economy.”).

26 See generally 20 C.F.R. § 416.960 for Title XVI.

A claimant’s past employment qualifies as past relevant work if it (a) was done within the

last 15 years; (b) lasted long enough for her to learn to do it; and (c) was substantial gainful

activity. 20 C.F.R. § 404.1565(a).27 Plaintiff’s argument fails because the record contains

sufficient evidence showing that her housekeeping cleaner job meets these criteria.

a. Plaintiff Worked as a Housekeeping Cleaner Within

15 years of the ALJ’s decision.

Substantial evidence supports the ALJ’s finding that that Plaintiff performed past

relevant work as a housekeeping cleaner “within 15 years of the date of this decision.”

(R. 33.) As the ALJ noted, on December 15, 2017, Plaintiff reported she had been self-

employed as a house cleaner from “2012 to Present.” (R. 397 (cited at R. 26).) Moreover,

at the January 2018 administrative hearing, Plaintiff testified she started a house cleaning

business in 2013 and was self-employed as a house cleaner in 2013, 2014, 2015, and 2016.

(R. 83.) On October 24, 2019, Plaintiff’s counsel completed a Work History Report on

Plaintiff’s behalf and indicated Plaintiff was self-employed as a housekeeper from January

2012 through December 2015. (R. 423-30.) In addition, Plaintiff’s certified earnings

records reflect self-employment income from 2012 through 2018. (R. 318-19.)

b. Plaintiff Worked as a Housekeeping Cleaner Long

Enough to Learn How to do the Job.

Substantial evidence also supports the ALJ’s finding that Plaintiff worked as a

housekeeping cleaner for a sufficient length of time to learn how to do the job and provide

average performance. (R. 33.)

At the October 2019 administrative hearing, the ALJ asked the VE to describe

Plaintiff’s past work. (R. 64.) The VE testified that Plaintiff’s past work was classified as

a housekeeping cleaner and indicated that such job had a Specific Vocational Preparation

27 See generally 20 C.F.R. § 416.965 for Title XVI.

(“SVP”) level of two. (R. 64-65.) The DOT appends a “definition trailer” to each job,

which is comprised of a number of selected occupational characteristics, including the

SVP Scale. See DOT, app. C, 1991 WL 688702 (4th ed. 1991). SVP is defined as “the

amount of lapsed time required by a typical worker to learn the techniques, acquire the

information, and develop the facility needed for average performance in a specific job-

worker situation.” Id. There are nine SVP levels, with level one representing the least

amount of time required and level nine representing the most. Id. The DOT assigns the

housekeeping cleaner job an SVP level of two, which means a typical worker can learn

how to perform the job with training consisting of “[a]nything beyond short

demonstration up to and including 1 month.” DOT § 323.687-014, 1991 WL 672783.

As noted above, Plaintiff indicated she worked as a house cleaner for varying

periods of time, none of which were less than four years (R. 83, 397, 423), and Plaintiff’s

certified earnings records reflect self-employment income for seven consecutive years

beginning in 2012 (R. 318-19). This far exceeds the one-month period generally required

to learn the housekeeping cleaning job and indicates an ability to provide average

performance.

c. Plaintiff’s Housekeeping Cleaner Job was

Substantial Gainful Activity.

Finally, substantial evidence supports the ALJ’s finding that Plaintiff performed

the housekeeping cleaner job at the level of substantial gainful activity. (R. 33.) The legal

standards for determining whether a work activity constitutes substantial gainful activity

are set forth in Section V(A) above. Although Plaintiff challenges the ALJ’s determination

that she performed substantial gainful activity in calendar years 2017 and 2018, she does

not challenge the ALJ’s substantial gainful activity determination for 2016. (ECF No. 16

at 2, 7-8.). In his decision, the ALJ correctly noted the presumptive earnings amount for

substantial gainful activity for non-blind individuals in 2016 was an average monthly

income of $1,130.00. (R. 26.) See 20 C.F.R. § 404.1574(b)(2); POMS DI 10501.015(B).

Plaintiff's earnings records show she earned $19,202.13 in 2016 (R. 26, 334-35)—of which

at least $17,392.00 was earned from self-employment (R. 332). An annual income of

$17,392.00 averages to a monthly income of $1,449.33—well above the threshold amount.

As such, Plaintiff was presumptively engaged in substantial gainful activity that year. 20

C.F.R. § 405.1575(c)(2)(i).

The ALJ appropriately found all three criteria met and that Plaintiff's

housekeeping cleaner job was past relevant work.

VI. Conclusion

For the foregoing reasons, the Commissioner’s decision finding Plaintiff not

disabled is AFFIRMED.

SO ORDERED this 2nd day of September, 2022.

lI, SS

UNITED STATES DISTRICT COURT

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