# Burke v. Social Security Administration

> District Court, N.D. Oklahoma · March 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10387122

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** March 9, 2023
- **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

PAIGE B., )
)
Plaintiff, )
)
v. ) Case No. 21-CV-134-CDL
)
KILOLO KIJAKAZI, )
Commissioner of the )
Social Security Administration, )
)
Defendant.1 )
)

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 disability
benefits. The parties have consented to proceed before a United States Magistrate Judge in
accordance with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court
affirms the Commissioner’s decision.
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

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).
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.” 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)). 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 June 26, 2018, the plaintiff filed a protective Title II application for a period of
disability and disability insurance benefits and a Title XVI application for supplemental
security income. (R. 15-16). The plaintiff was 43 years old on her amended alleged
disability onset date of June 30, 2015. (R. 98-99).2 She initially alleged disability due to a
back injury, arthritis in her spine, a bolt in her left foot, carpal tunnel syndrome, glaucoma,
and degenerative disc disease. (R. 99). The plaintiff also submitted medical records

documenting certain mental health diagnoses, including depression/bipolar disorder,
trauma and stress-related disorder, and personality disorder. (See R. 111). She has worked
as a home health aide and a dietary aide in the past, and she last performed work in 2009.
(See R. 132).
The Commissioner considered the plaintiff’s physical and mental limitations in

denying her claim initially and on reconsideration. (R. 94-188). An administrative law
judge (ALJ) held telephonic hearings on June 17, 2020 and September 30, 2020, which
included testimony by the plaintiff, two vocational experts (VEs), and an impartial medical
expert, Robert H. Smiley, M.D. (R. 15).
On October 29, 2020, the ALJ issued a decision denying benefits. (R. 15-38).

Plaintiff appealed the ALJ’s decision to the Appeals Council, which denied plaintiff’s
request for review on January 25, 2021. (R. 1). As a result, the ALJ’s October 29, 2020
decision became the final decision of the Commissioner. Id. Plaintiff then timely appealed
to the district court.
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

2 The plaintiff initially alleged an onset date of December 31, 2009. (R. 15).
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 v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)
(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 v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007). 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 insured status through March
31, 2016 and had not engaged in substantial gainful activity since her alleged disability
onset date. (R. 18). At step two, the ALJ found that plaintiff suffers from the severe
impairments of degenerative disc disease of the lumbar spine, status post-surgery; post

laminectomy syndrome; obesity; degenerative joint disease and status post injury and
surgery to the left ankle; diverticulitis; depressive disorder; trauma and stressor disorder;
personality disorder; and schizoaffective disorder. Id. The ALJ found that plaintiffs’
hypertension is non-severe and that her alleged glaucoma is medically non-determinable.
(R. 18-19).
At step three, the ALJ found plaintiff’s impairments do not meet or medically equal

a Listing. In explaining this finding, 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 1.3 The ALJ
found the plaintiff has a moderate limitation in understanding, remembering, and applying
information; a moderate limitation in interacting with others; a moderate limitation in

concentrating, persisting, or maintaining pace; and no limitation in adapting or managing
oneself. (R. 19-20). Because plaintiff does not have at least one extreme or two or more
marked limitations, the ALJ determined that the “paragraph B” criteria are not satisfied.
(R. 21). 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. Id.

At step four, the ALJ determined that the plaintiff has the residual functional
capacity (RFC) to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except as follows: The [plaintiff] should not engage in climbing of
ladders, ropes, or scaffolds. The [plaintiff] is not able to crawl.
Stooping, crouching, kneeling, balancing, and climbing of ramps or
stairs can be done occasionally. She should have no exposure to

3 When there is evidence of a mental impairment that allegedly prevents a claimant
from working, the ALJ must follow the procedure for evaluating mental impairments set
forth in the regulations and is required to document the application of the procedure, known
as the psychiatric review technique (PRT), in the decision. 20 C.F.R. §§ 404.1520a(c)(3),
416.920a(c)(3). The “paragraph B” criteria represent the areas of mental functioning a
person uses in a work setting. See 20 C.F.R., Part 404, Subpart P, Appendix 1, §12.00 (C).
unprotected heights, open flames, dangerous machinery or
equipment, or other hazardous conditions (note that not all moving
machinery is dangerous—such as machinery where moving parts are
shielded). The [plaintiff] should have no exposure to elevated levels
of vibration (with elevated level defined to mean in excess of that
ordinarily found in modern office buildings or light manufacturing
facilities). Due to mental impairments, the [plaintiff] is capable of
doing only unskilled work consisting of simple and routine tasks
with routine supervision that require only that she be able to
understand, remember and carry out simple instructions. The
[plaintiff] can maintain concentration and persist for two-hour
periods during the workday, with normally scheduled work breaks
between periods. The [plaintiff] can relate to supervisors and
coworkers for work related purposes with occasional contact, and
can adapt to a work situation where interaction with others is
incidental to work performed. She should have no contact with the
general public (meaning interaction with the general public is not
part of the job duties, and any contact would in most cases be
incidental and superficial).
(R. 21).
The ALJ determined that plaintiff has no past relevant work. (R. 30). Thus, the ALJ
proceeded to step five. Based on the VE’s testimony as to a hypothetical claimant with the
plaintiff’s age, education, work experience, and RFC, the ALJ found that plaintiff can
perform the requirements of representative occupations, including:
Document Preparer, Dictionary of Occupational Titles (DOT) #
249.587-018, sedentary, unskilled, specific vocational preparation
(SVP) level 2, with 44,000 such jobs estimated in the national
economy;
Clerical Mailer, DOT # 209.587-010, sedentary, unskilled, SVP
level 2, with 20,000 such jobs estimated in the national economy;
and
Circuit Board Screener, DOT # 426.684-110, sedentary, unskilled,
SVP level 2, with approximately 24,000 such jobs estimated in the
national economy.
(R. 31). The ALJ found that these occupations comprise work that exists in significant
numbers and, accordingly, found plaintiff not disabled at step five. Id.
IV. Discussion

The plaintiff contends that the ALJ erred at step three in finding that her mental
impairments do not meet or equal Listing 12.03 or 12.04. She also challenges the ALJ’s
step-five conclusion that the plaintiff can perform alternative work. Both of these arguments
focus on certain portions of consultative examination reports by (1) Derrise Garner, Psy.D.,
in 2014, and (2) Peter Ciali, Ph.D., in 2018.4 The Commissioner argues that the ALJ’s

decision is free from legal error and is supported by substantial evidence.
A. Step Three Findings
The plaintiff bears the burden to show that her impairment satisfies the criteria of a
Listing. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). All of the specified
medical criteria must be matched to meet a Listing. Sullivan v. Zebley, 493 U.S. 521, 530

(1990) (“An impairment that manifests only some of [the] criteria, no matter how severely,
does not qualify.”). The ALJ is required to discuss the evidence and the ALJ’s reasons for

4 The plaintiff’s brief also “submit[s] that 88,000 jobs in the national economy” does
not constitute a “significant number” to support the ALJ’s step-five finding. (Doc. 22 at 5).
However, the plaintiff fails to supply any authority supporting the proposition that the
Court should overturn the ALJ’s decision on this basis, and the Court is aware of none. To
the contrary, the Tenth Circuit has emphasized that “the issue of numerical significance
entails many fact-specific considerations requiring individualized evaluation” and, as such,
this determination “should ultimately be left to the ALJ’s common sense in weighing the
statutory language as applied to a particular claimant’s factual situation.” Allen v. Barnhart,
357 F.3d 1140, 1144 (10th Cir. 2004) (quoting Trimiar v. Sullivan, 966 F.2d 1326, 1330
(10th Cir. 1992)). Accordingly, this argument is rejected.
determining a claimant did not satisfy any Listing. Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996); see also 42 U.S.C. § 405(b).
Plaintiff argues that the ALJ failed to adequately discuss the requirements of

Listings 12.03, which address schizophrenia spectrum and other psychotic disorders, and
12.04, which addresses depression, bipolar, and related disorders. The ALJ addressed each
of these Listings but found that the severity of the plaintiff’s mental impairments,
considered singly and in combination, do not meet or medically equal all of their criteria.
(R. 19).5

Listing 12.03 has two main requirements: (1) medical documentation of either
delusions or hallucinations, disorganized thinking (speech), or grossly disorganized
behavior or catatonia; and (2) an “extreme” limitation in one of the “paragraph B” domains,
or “marked” limitations in two of the domains. 20 C.F.R. § 404 Subpt. P App’x 1, § 12.03.
A marked limitation means that the claimant is seriously limited in functioning in the

domain independently, appropriately, effectively, and on a sustained basis. Id. § 12.00(F).
An extreme limitation means the inability to function in the domain independently,
appropriately, or effectively, and on a sustained basis. Id. Similarly, Listing 12.04 requires
one extreme or two marked limitations in the “paragraph B” domains. Id. § 12.04.
The ALJ’s decision explained that, because the ALJ found the plaintiff has no more

than moderate limitations in the “paragraph B” domains, her mental impairments do not

5 The ALJ’s decision also noted certain other Listings related to mental disorders, but
the plaintiff’s brief only challenges the ALJ’s findings as to Listings 12.03 and 12.04.
meet or medically equal Listings 12.03, 12.04, or other mental disorder-related Listings.
(See R. 20). The ALJ’s decision explained his findings in each domain, with reference to
plaintiff’s statements, standardized test results, and the observations and opinions of

plaintiff’s treating providers and consultative examiners. (R. 20-21).
In understanding, remembering, or applying information, the ALJ found that
plaintiff has a moderate limitation. Dr. Garner’s examination in 2014 documented “very
low” short-term memory for auditory information, as well as low-average intellectual
functioning. (R. 20). During Dr. Ciali’s 2018 consultative examination, the plaintiff scored

two out of five in delayed recall, and was observed to have slightly impaired memory for
recent and remote events and only fair judgment. Id. However, the ALJ noted other
evidence supported a “moderate” limitation, including 2015 examination notes from Bryan
Sheehan, D.P.M. observing that the plaintiff had fully intact recent and remote memory.
The ALJ noted plaintiff’s complaints “at times” that her memory was worsening; however,

he also noted that the plaintiff’s “medical records tended to show [her] memory was normal
or intact.” Id.
In interacting with others, the ALJ found the plaintiff has a moderate limitation. Id.
In 2018, she reported difficulty being around other people and feeling that others were
plotting and lying about her. During Dr. Ciali’s 2018 examination, the plaintiff scored two

out of three on the language portion of the Montreal Cognitive Assessment. Id. Although
her eye contact was “variable,” she was polite and cooperative, and she denied homicidal
ideations. Id. Reviewing the medical records, the ALJ noted that plaintiff was “generally”
pleasant and was sometimes anxious but not agitated. Id.
The plaintiff’s moderate limitation in concentrating, persisting, and maintaining
pace reflected a below-average MoCA score on attention, as well as Dr. Ciali’s report that
the plaintiff was able to concentrate and maintain attention throughout the evaluation. Id.

the plaintiff’s medical records showed that her attention span and concentration were poor
at times, but normal at other times. Id.
The ALJ found that the plaintiff has no limitation in adapting or managing oneself,
noting that the plaintiff was reported to be well-groomed, with “good attention to hygiene”;
and she exhibited fair to normal judgment. Id.

B. Dr. Garner
Plaintiff argues that the ALJ overlooked certain evidence indicating that she has
marked limitations in certain domains. During Dr. Garner’s 2014 consultative examination,
the plaintiff reported that “she often goes from depression to excessive agitation and anger,
in which she seriously wants to hurt people. She indicated the last time this occurred was

a couple of months ago, when she actually ‘hit a girl in the face.’” (R. 711). Dr. Garner
opined that, “[a]t the maximum, the [plaintiff] would appear to have the capacity to interact
in only a very limited contact situation involving work supervisors and/or coworkers, and
would need much supervision and direction.” (R. 712). Dr. Garner further opined that the
plaintiff “would not appear capable of persisting on even a simple task during a normal

workday.” Id. Dr. Garner also related the plaintiff’s statements that she sometimes hears
voices calling her name or telling her to harm herself, and that she sees shadows and shapes.
The plaintiff’s brief contains no developed argument regarding this evidence, but
appears to contend that Dr. Garner’s findings supported marked and/or extreme limitations
in one or more of the first three “paragraph B” domains, and/or restrictions in the RFC
determination that would preclude substantial gainful activity. The ALJ’s decision 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).6 The most important factors for
the ALJ to consider are supportability and consistency, and the ALJ’s decision must
explain how she considered those factors in determining persuasiveness of a medical
source’s medical opinions or prior administrative medical findings. Id. § 404.1520c(b)(2).7
Here, the ALJ’s decision recounted Dr. Garner’s report in two detailed paragraphs,

noting that the plaintiff denied having any friends and indicated she may be too depressed
to manage her own finances. (R. 26). The plaintiff reported that she had driven herself to
the appointment, but she was not able to produce a driver’s license or other official
identification, even “after much rummaging in her purse.” Id. The plaintiff exhibited
depressed affect, speech, and thought content, and was slow responding to questions and

task instructions. (Id.; see R. 709-710).
The ALJ noted Dr. Garner’s opinion that the plaintiff was not capable of persisting
even on simple tasks during a workday or of interacting in simple contact situations
involving the public. (R. 29). However, he noted that Dr. Garner “opined the [plaintiff]

6 For claims filed on or after March 27, 2017, such as the plaintiff’s claim here, the
Commission does not “defer or give any specific evidentiary weight, including controlling
weight, to any medical opinions.” 20 C.F.R. § 404.1520c(a).
7 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. § 404.1520c(c).
appeared capable of understanding and remembering simple instructions” and that, at
maximum, the plaintiff could interact in only a very limited capacity with work supervisors
and/or coworkers, while also requiring “much supervision and direction.” Id. With respect

to persistence, the ALJ found Dr. Garner’s opinion not to be persuasive, “not only because
it predates the amended alleged onset date, but because this limitation is not supported by
the State Agency’s review or Dr. Ciali’s examination and findings[,] which found the
[plaintiff] could pay sufficient attention during the evaluation and could manage[] her own
funds.” Id. Nonetheless, the ALJ found Dr. Garner’s opinion is consistent with Dr. Ciali’s

findings as to the plaintiff’s limitation to simple work and to social limitations. Id.
The ALJ’s ultimate RFC determination is largely consistent with Dr. Garner’s
opinion of the plaintiff’s abilities, including in social interaction limitations. The ALJ
rejected Dr. Garner’s opinion that the plaintiff cannot persist on even simple tasks during
a normal workday, but the ALJ’s decision provided adequate reasons for doing so—i.e.,

Dr. Garner’s examination took place more than a year before the amended onset date, and
that portion of her opinion is not consistent with other, more contemporaneous evidence in
the record. As such, the ALJ properly addressed the required factors of supportability and
consistency in discussing Dr. Garner’s opinion.
The ALJ’s opinion did not discuss every aspect of Dr. Garner’s opinion, but it was

not required to do so. “The record must demonstrate that the ALJ considered all of the
evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition
to discussing the evidence supporting [the] decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative
evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (quoting Clifton
v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). Here, the ALJ was not required to
specifically address plaintiff’s self-report to Dr. Garner about her extreme mood swings

and periodic desire to hurt other people. As noted, Dr. Garner’s examination predated the
alleged onset date by more than one year. Further, the ALJ noted other, similar evidence,
including two separate occasions when she reported having problems getting along with
others. (R. 22).
Regarding the plaintiff’s report of auditory and visual hallucinations, the ALJ’s

decision expressly noted that the plaintiff “did endorse a history of hallucinations and
suicidal thinking.” (R. 26). The ALJ concluded that the plaintiff’s history of hearing voices
supports having no contact with the general public and only occasional contact with
coworkers and supervisors.” (R. 30). As noted above, the RFC assessment is consistent
with the social-interaction limitations in Dr. Garner’s opinion. Thus, the ALJ’s decision

adequately addressed the symptoms noted in Dr. Garner’s report.
C. Dr. Ciali
The plaintiff’s brief also points to certain selected portions of Dr. Ciali’s 2018
examination report. However, as with Dr. Garner’s opinion, the ALJ’s decision discussed
Dr. Ciali’s report and explained how he considered it in making the “paragraph B” and

RFC findings. For example, Dr. Ciali noted the plaintiff reported a history of hearing voices
calling her name and telling her to harm herself. (R. 27). She told Dr. Ciali that she could
not “be around people” and felt that others were plotting against her and lying. Id. During
the examination, the plaintiff was alert and oriented to person, place, time, and situation;
she was polite and cooperative; and she “maintained a reasonable level of concentration
and attention.” Id. The ALJ found Dr. Ciali’s opinion persuasive, including that the
plaintiff’s ability to carry out simple instructions was intact, and that she was moderately

limited in her ability to perform work related to remembering information, understanding
instructions, and maintaining sustained concentration. Id. While Dr. Ciali opined that the
plaintiff has marked deficits in her ability to socially interact and adapt, the ALJ found
those limitations to be consistent with the RFC determination. (R. 30).
As such, the ALJ’s decision adequately addressed Dr. Ciali’s report. The Court can

readily follow the ALJ’s reasoning, and his “paragraph B” and RFC findings extend
logically from the evidence. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir.
2005) (citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (the ALJ is required
“to discuss the evidence and explain why [she] found that [a claimant] was not disabled at
step three”)).

D. Summary
Substantial evidence supports the ALJ’s “paragraph B” findings. As such, the
plaintiff did not meet her burden to show any reversible error in the ALJ’s finding regarding
Listings 12.03 and 12.04. Furthermore, plaintiff has shown no error in the ALJ’s findings
at step five, including in his consideration of the reports of Dr. Garner and Dr. Ciali. Rather,

the plaintiff is asking the Court to re-weigh the evidence, which it may not properly do.
See Lax, 489 F.3d at 1084 (“The possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s findings from being supported
by substantial evidence.” (citation and quotation omitted)); see also Richardson v. Perales,
402 U.S. 389, 399 (1971) (‘We . . . are presented with the not uncommon situation of
conflicting medical evidence. The trier of fact has the duty to resolve that conflict.”’).
V. Conclusion
The Court finds that the ALJ’s decision is supported by substantial evidence and
free of reversible legal error. The decision of the Commissioner finding the plaintiff not
disabled is therefore affirmed.
DATED this 9th day of March, 2023.

Unietre □ Like
Christine D. Little
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387122. Public record. Not legal advice.