Bevel v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

AMY E. BEVEL, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-1172-STE

)

ANDREW M. SAUL, )

Commissioner of the Social Security )

Administration,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the

final decision of the Commissioner of the Social Security Administration denying Plaintiff’s

application for benefits under the Social Security Act. The Commissioner has answered

and filed a transcript of the administrative record (hereinafter TR. ____). The parties have

consented to jurisdiction over this matter by a United States magistrate judge pursuant

to 28 U.S.C. § 636(c).

The parties have briefed their positions, and the matter is now at issue. Based on

the Court’s review of the record and the issues presented, the Court AFFIRMS the

Commissioner’s decision.

I. PROCEDURAL BACKGROUND

Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for benefits. Following a hearing, an Administrative Law Judge (ALJ) issued

1 On June 17, 2019, Andrew M. Saul was sworn in as the Commissioner of Social Security and

he is substituted as the proper Defendant. Fed. R. Civ. P. 25(d).

an unfavorable decision. (TR. 15-27). The Appeals Council denied Plaintiff’s request for

review. (TR. 1-4). Thus, the decision of the ALJ became the final decision of the

Commissioner.

II. THE ADMINISTRATIVE DECISION

The ALJ followed the five-step sequential evaluation process required by agency

regulations. , 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.

§ 404.1520. At step one, the ALJ determined that Plaintiff did not engage in substantial

gainful activity since January 1, 2014, her alleged onset date. (TR. 17). At step two, the

ALJ determined that Ms. Bevel had the following severe impairments: DDD (Disorders of

the back, discogenic and degenerative) and fibromyalgia. (TR. 17). At step three, the ALJ

found that Plaintiff’s impairments did not meet or medically equal any of the

presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1

(TR. 19).

At step four, the ALJ concluded that Ms. Bevel retained the residual functional

capacity (RFC) to: “[P]erform the full range of sedentary work as defined in 20 CFR

404.1567(a).” (TR. 19). With this RFC, the ALJ concluded that Ms. Bevel was unable to

perform any past relevant work. (TR. 26). However, because the ALJ concluded that Ms.

Bevel could perform the full range of sedentary work, he proceeded to assess the issue

of disability utilizing the Medical-Vocational Guidelines found at 20 C.F.R. Part 404,

Subpart P, Appendix 2 (“the Grids”). Social Security Ruling 83-11, Titles II And XVI:

Capability to Do Other Work--the Exertionally Based Medical-Vocational Rules Met, 1983

WL 31252 at (1983) (allowing application of the Grids when the claimant can perform all

of the exertional demand at a given level of exertion, i.e.—a full range of “sedentary”

work).

Because Ms. Bevel was considered a “younger individual,” with a high school

diploma or more, with no transferrable work skills, and was deemed capable of

performing a full range of sedentary work, the applicable “Grid” was Rule 201.28. 20

C.F.R. Part 404, Subpart P, Appendix 2; Rule 201.28. The ALJ applied this rule, and

concluded that Ms. Bevel was not disabled. (TR. 27).

III. STANDARD OF REVIEW

This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” , 602 F.3d 1136, 1140 (10th Cir.

2010). Under the “substantial evidence” standard, a court looks to an existing

administrative record and asks whether it contains “sufficien[t] evidence” to support the

agency’s factual determinations. , 139 S. Ct. 1148, 1154 (2019).

“Substantial evidence … is more than a mere scintilla … and means only—such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

, 139 S. Ct. at 1154 (internal citations and quotation marks omitted).

While the court considers whether the ALJ followed the applicable rules of law in

weighing particular types of evidence in disability cases, the court will “neither reweigh

the evidence nor substitute [its] judgment for that of the agency.” , 805

F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

IV. ISSUES PRESENTED

Ms. Bevel alleges: (1) the ALJ erred at step two by failing to properly consider

Plaintiff’s depression, chronic pain disorder, and obesity; (2) the Appeals Council erred by

failing to consider certain evidence; (3) the ALJ erred in evaluating Plaintiff’s subjective

complaints; and (4) the ALJ erred in relying on the Grids at step five. (ECF No. 19:3-15).2

V. STEP TWO

At step two, the ALJ: (1) found that Ms. Bevel’s medically determinable mental

impairment of “Anxiety Disorders” was not considered a severe impairment and (2) made

no findings regarding whether Plaintiff’s chronic pain disorder and obesity were

considered severe impairments. (TR. 17-19). Ms. Bevel alleges error in these findings.

(ECF No. 19:3-6).3 The Court rejects this argument.

At step two, the ALJ found that Plaintiff suffered from two severe impairments.

(TR. 17). The Tenth Circuit Court of Appeals has held that “once an ALJ finds that a

claimant has at least one severe impairment, he does not err in failing to designate other

disorders as severe at step two, because at later steps the agency ‘will consider the

2 Ms. Bevel alleges an additional point of error—that the ALJ failed to consider the impact of her

obesity at step five. (ECF No. 19:14-15). This allegation will be subsumed in the discussion of the

ALJ’s reliance on the Grids. .

3 Within this specific allegation of error, Plaintiff also argues that the ALJ “miscast” two pieces of

evidence. (ECF No. 19:5-6). First, Plaintiff states that the ALJ noted “no evidence of … foraminal

stenosis” in “MRIs,” then referred to an MRI finding which showed “scattered borderline to mild

neural foraminal narrowing.” (ECF No. 19:5). Second, Ms. Bevel states that the ALJ incorrectly

referred to a “CT scan” as an “MRI.” (ECF No. 19:6). But Plaintiff does not argue how these

alleged misstatements are relevant to the findings at step two, or to the decision overall. ECF

No. 19. As a result, the Court will not further consider these arguments. ,

663 F. App’x 646, 649 (10th Cir. 2016) (noting that “it isn’t [the Court’s] obligation to search the

record and construct a party’s arguments.”).

combined effect of all the claimant’s impairments without regard to whether any such

impairment, if considered separately, would be of sufficient severity.’ ”

340 F. App’x 481, 484 (10th Cir. 2009) (quoting 20 C.F.R. § 404.1523). Consequently,

the undersigned “can easily dispose of” Plaintiff’s step-two challenge.

509 F.3d 1254, 1256 (10th Cir. 2007); 287 F. App’x 626, 629

(10th Cir. 2008) (“Once an ALJ has found that a claimant has at least one severe

impairment, a failure to designate another disorder as ‘severe’ at step two does not

constitute reversible error....”). Thus, the Court finds no error at step two.

VI. EVIDENCE SUBMITTED TO THE APPEALS COUNCIL

On January 12, 2018, Plaintiff appealed the ALJ’s decision to the Appeals Council.

(TR. 188). In doing so, Ms. Bevel submitted additional evidence in the form of a February

16, 2018 CT scan of her lumbar spine. (TR. 8-9). 4 The Appeals Council declined Plaintiff’s

request for review, and in doing so, stated:

You submitted Vantage Diagnostic Imaging report dated February 16, 2018

(2 pages). The Administrative Law Judge decided your case through

November 17, 2017. This additional evidence does not relate to the period

at issue. Therefore, it does not affect the decision about whether you were

disabled beginning on or before November 17, 2017.

(TR. 2). “[T]he Appeals Council’s dismissal of the additional evidence’s import on the

grounds that it was not temporally relevant indicates that it ultimately found the evidence

did not qualify for consideration at all.” , 525 F. App’x 710, 712 (10th Cir.

2013). This decision is supported by the regulations. 20 C.F.R. § 404.970(a)(5)

4 Plaintiff states that the report in question was an MRI, but in fact it was a CT scan.

ECF No. 19:6 TR. 8-9. The Court only notes the distinction because Plaintiff had chastised

the ALJ for making the same mistake with respect to a CT scan from January 24, 2013, which the

ALJ had referred to as an MRI. ECF No. 19:6; TR. 21 TR. 326.

(noting that temporal relevance is a requirement to warrant consideration by the Appeals

Council). Ms. Bevel alleges error in the Appeals Council’s failure to consider the additional

evidence,5 but the Court rejects this argument.

Whether evidence qualifies for consideration by the Appeals Council is a question

of law subject to review. 353 F.3d 1185, 1191 (10th Cir.

2003). Additional evidence should only be considered by the Appeals Council if it is “new,

material, and relates to the period on or before the date of the hearing decision, and

there is a reasonable probability that the additional evidence would change the outcome

of the decision.” 20 C.F.R. §§ 404.970(a)(5) (effective Jan. 17, 2017).6 Evidence is

considered “new” “if it is not duplicative or cumulative,” and it is considered “material” “if

there is a reasonable possibility that it would have changed the outcome.” 353

F.3d at 1191 (alterations omitted) (internal quotation marks omitted). Evidence is

considered “chronologically pertinent” if it relates to the time period on or before the

ALJ’s decision. If the Appeals Council erred in rejecting the evidence, remand is

warranted. , 389 F.3d 1139, 1142 (10th Cir. 2004).

5 (TR. 19:6-7).

6 The requirement that the additional evidence create a “reasonable probability” of changing the

outcome of the decision was added to the regulations on January 17, 2017, with compliance

required by May 1, 2017. 81 Fed. Reg. 90,987 (Dec. 16, 2016), 2016 WL 7242991 (F.R.).

The District of New Mexico has read the change as requiring a “heightened materiality standard.”

No. 18-CV-0731 SMV, 2019 WL 1129459, at *3, n.5 (D.N.M. Mar. 12, 2019

(noting that the new regulations “heightens the claimant’s burden to prove materiality: whereas

the previous test required merely a reasonable possibility of changing the outcome, now it

requires a reasonable probability of changing the outcome”). But the Tenth Circuit has not

announced such a bright-line rule.

Here, Ms. Bevel argues that the evidence is “new” because it “has not been in the

record previously.” (ECF No. 19:6). The Court disagrees. As stated, evidence is considered

“new” “if it is not duplicative or cumulative.” , . The record before the

ALJ included a CT scan of Ms. Bevel’s lumbar spine dated June 6, 2016. (TR. 513-514).

The CT scan submitted to the Appeals Council, dated February 16, 2018, is not considered

“new” because it is cumulative of the June 6, 2016 report. The findings from the two

scans are as follows:

June 6, 2016 CT scan February 16, 2018 CT scan

(included in the record before the ALJ) (submitted to the Appeals Council)

L1/2: The central canal and neural L1/2: The central canal and neural

foramina are patent. foramen are patent.

L2/3: The central canal and neural L2/3: The central canal and neural

foramina are patent. foramen are patent.

L3/4: There is mild facet hypertrophy. L3/4: There is mild facet hypertrophy

There is ligamentum flavum thickening with mild vacuum-disc phenomenon on

with mild calcifications on the right. the left facet joint. There is ligamentum

Central canal is patent. There is mild flavum thickening with mild calcification on

neural foraminal narrowing. the right. There is a small annular disc

bulge with borderline central canal

narrowing measuring 10 mm. There is

mild bilateral neuroforaminal narrowing.

L4/5: There are postsurgical changes L4/5: There are postsurgical changes.

with interbody fusion graft in place. There There is mild hypertrophy of the facet

is hypertrophy of the facet joints with mild joints with mild posterior endplate

posterior endplate spurring. The central spurring. The central canal is patent.

canal is patent. There is mild neural There is mild right with mild/moderate left

foraminal narrowing. neuroforaminal narrowing.

L5/S1: There is facet hypertrophy. The L5/S1: There is facet hypertrophy. The

central canal is patent. There is mild neural central canal is patent. There is

foraminal narrowing. mild/moderate neuroforaminal narrowing.

Both scans were performed at Vantage Diagnostic Imaging and in the 2018 report,

Dr. James Cooper specifically referenced the 2016 scan for comparison and stated: “there

has been no significant change since the prior examination.” (TR. 9). Based on the

findings in the reports themselves, as well as Dr. Cooper’s comparison, the Court

concludes that the 2018 scan was not “new” evidence, but instead was cumulative of the

2016 report, which had been included in the record before the ALJ.

Plaintiff contends that the evidence was “material” because “it reveals the

progression of Claimant’s worsening neuroforaminal narrowing, particularly at L4/5 and

L5/1, when compared to Claimants [sic] August 13, 2016 MRI.” (ECF No. 19:6). In support

of this statement, Ms. Bevel cites the administrative transcript at pages 8-9. (ECF No.

19:6). But these pages are Plaintiff’s February 16, 2018 CT scan, which refers to the June

6, 2016 scan for comparison, with no mention of an August 13, 2016 MRI. As stated, the

findings in the February 18, 2018 scan are not considered “new” for purposes of

consideration by the Appeals Council. Because the two scans render

cumulative/duplicative results, the Court also concludes that the evidence is not

considered “material”—i.e.—there is not a “reasonable possibility that [the February 2018

scan] would have changed the outcome.” .

Finally, regarding whether the evidence is “chronologically pertinent,” Ms. Bevel

makes no argument. (ECF No. 19:6-7). Even though the February 2018 scan post-dated

the ALJ’s decision, evidence can be considered “chronologically pertinent” if it “relates to

the time period before the ALJ’s decision.” , at 713. Here, an argument could be

made that the evidence relates to the period before the ALJ’s decision, as it essentially

mirrors evidence which was presented to the ALJ—the June 6, 2016 CT scan. But for

precisely reason, the evidence is not considered “new” or “material.” .

Because the evidence in question did not meet the three requirements for consideration

by the Appeals Council, the Court finds no error in the Appeals Council’s failure to consider

the evidence.

VII. THE ALJ’S EVALUATION OF PLAINTIFF’S SUBJECTIVE ALLEGATIONS

Ms. Bevel alleges error in the ALJ’s evaluation of Plaintiff’s subjective allegations.

(ECF No. 19:10-14). The Court disagrees.

A. ALJ’s Duty to Evaluate Plaintiff’s Subjective Allegations

Social Security Ruling 16-3p provides a two-step framework for the ALJ to consider

a claimant’s symptoms and determine the extent to which the symptoms are consistent

with the evidence in the record. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016).

First, the ALJ must make a threshold determination regarding “whether there is an

underlying medically determinable physical or mental impairment(s) that could

reasonably be expected to produce an individual’s symptoms, such as pain.” , at *2.

Second, the ALJ will evaluate the intensity and persistence of the claimant’s symptoms to

determine the extent to which they limit an individual’s ability to perform work-related

activities. At step two, the ALJ will examine the objective medical evidence, the

claimant’s statements regarding her symptoms, information from medical sources, and

“any other relevant evidence” in the record. , at *4. SSR 16-3p also directs the ALJ to

consider the following seven factors in evaluating the intensity, persistence, and limiting

effects of the claimant’s symptoms:

• Daily activities;

• The location, duration, frequency, and intensity of pain or other symptoms;

• Factors that precipitate and aggravate the symptoms;

• The type, dosage, effectiveness, and side effects of any medication;

• Treatment, other than medication, an individual receives or has received

for relief of pain or other symptoms;

• Any measures other than treatment a claimant has used to relieve pain or

other symptoms; and

• Any other factors concerning an individual’s functional limitations and

restrictions due to pain or other symptoms.

, at *7. Finally, in evaluating a claimant’s subjective statements, the ALJ must “provide

specific reasons for the weight given to the [claimant’s] symptoms, [which are] consistent

with and supported by the evidence, and [ ] clearly articulated” for purposes of any

subsequent review. , at *9.

B. No Error in ALJ’s Evaluation of Plaintiff’s Subjective Allegations

Plaintiff’s allegations of error on this issue are two-fold. First, Ms. Bevel alleges

that the ALJ improperly relied on boilerplate language to discount her subjective

complaints. (ECF No. 19:10-11). Second, Plaintiff alleges the ALJ’s evaluation lacked

substantial evidence. (ECF No. 19:12-14). Neither argument has merit.

1. No Improper Use of Boilerplate Language

In formulating the RFC, the ALJ stated that he had considered Ms. Bevel’s

subjective allegations. (TR. 20). The ALJ then: (1) set forth the two-step framework under

SSR 16-3p, (2) summarized the Plaintiff’s hearing testimony, and stated:

[T]he claimant’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of

these symptoms are not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained in this decision.

(TR. 21). Ms. Bevel alleges that this explanation was nothing more than improper

boilerplate language and specifically, that the ALJ’s reference to “other evidence in the

record” was insufficient. (ECF No. 19:10-11, 13).

It is true, the Tenth Circuit Court of Appeals has held that the use of boilerplate

language, “in the absence of a more thorough analysis” is insufficient to support an ALJ’s

credibility determination. 362 F.3d 676, 679 (10th Cir. 2004). But

here, the ALJ did more than merely recite boilerplate. By means of explanation regarding

Plaintiff’s subjective allegations, the ALJ discussed:

• Objective evidence, including MRIs, and treatment notes;

• Plaintiff’s drug-seeking behavior;

• Ms. Bevel’s activities of daily living; and

• Plaintiff’s use of medications and other treatments.

(ECF No. 21-26). Because the ALJ referred to specific evidence in support of his decision

to discount Plaintiff’s credibility, the Court rejects this allegation of error.

, 695 F.3d 1156, 1170-71 (10th Cir. 2012) (no error when ALJ referred

to “other factors” and “other reasons” in evaluating claimant’s credibility when he

thereafter cited medical evidence, including MRIs and treatment notes in support of his

determination).

2. The ALJ’s Evaluation was Supported by Substantial Evidence

Despite Plaintiff’s allegations that the ALJ had employed improper boilerplate

reasoning, Ms. Bevel recognizes that the ALJ provided specific reasons in discounting

Plaintiff’s subjective allegations. (ECF No. 19:11-13). However, in her second allegation

of error on this issue, Plaintiff challenges the ALJ’s reliance on Ms. Bevel’s: (1) drug-

seeking behavior and (2) activities of daily living. These arguments are without merit.

First, as to Ms. Bevel’s drug-seeking behavior, the ALJ noted that Plaintiff received

treatment from Dr. Terrell Phillips from 2013 through March 4, 2016, when Plaintiff was

ultimately discharged from his care following three inappropriate urinalysis tests and

violating the narcotics contract she had signed. (TR. 22). After examining various

treatment notes from different providers and the MRI evidence, the ALJ found: “[Ms.

Bevel’s] pattern of drug-seeking behavior is inconsistent with the physicians’ instructions

and recommendations. Indeed, the level of narcotics the claimant was seeking is not

warranted by the objective findings of evidence as illustrated in the MRIs of her spine.”

(TR. 26). The ALJ also found that “[t]he most blatant example of the claimant’s drug

seeking behavior” was noted during an encounter with Allen Rural Family Medicine on

June 26, 2017. (TR. 25). The ALJ accurately described the situation thus:

[Plaintiff] was seen on the 26th [of June, 2017] and came back to get the

Norco prescription on the 29th. When she took it to the pharmacy, the

pharmacist informed the physician that [Plaintiff] had just filled a

prescription for Norco from another doctor on June 15th for 90 tablets. The

physician informed the pharmacist not to fill the prescription and that the

claimant needed to call their office. When she called, [the physician]

informed the claimant what the pharmacist had relayed to him and stated

that they would not be refilling any narcotics for her any longer but they

could see her for the next month while she is looking for a new doctor. The

physician stated that the claimant hung up on him.

(TR. 25).

Plaintiff argues that “it must be taken into consideration that Claimant’s doctors

have prescribed Valium and narcotic for pain and muscle spasms … [and] [i]f Claimant is

drug-seeking, it cannot be ignored that her doctors kept prescribing strong narcotics to

her.” (ECF No. 19:11).7 In support, Plaintiff relies on , 86 F.3d 176 (10th

Cir. 1996), but her reliance is misplaced. In , the ALJ discounted the plaintiff’s

allegations of disabling pain, finding that the pain had been effectively controlled by pain

medication. , at 179. However, in that case, the evidence also revealed that the

plaintiff was addicted to the pain medication and “[t]he net result of the ALJ’s decision

[would be] that [the plaintiff] would return to work, addicted, because her drug abuse

[would] keep her from feeling severe pain.” The Tenth Circuit found this rationale

unacceptable, stating:

[T]he ALJ cannot discredit a claimant’s assertions of disabling pain by

relying on her use of medicines to which the medical evidence clearly

indicates she is addicted, and which she should have long ago stopped

taking, but which presently provide adequate pain relief. [The treating

physician’s] statement, on which the ALJ relied, that [the plaintiff’s] pain is

“ controlled by medicines,” is clearly unsupported by the medical

evidence; addiction is not “effective control” of pain.

at 179-180. is not controlling in the instant case.

Unlike , there is no evidence that Ms. Bevel was addicted to the narcotics

she was prescribed and would be returning to work while so affected. Here, the evidence

showed: (1) Dr. Phillips discharged Ms. Bevel from his care following three inappropriate

urinalysis tests and for violating the pain medication contract and (2) the Allen Rural

7 Within this allegation of error, Ms. Bevel presents two additional arguments, but neither

provides a basis for reversal. First, Plaintiff states that the ALJ “ignores in spite of the drug-

seeking, no doctor has recorded Claimant’s complaints as exaggerated.” (ECF No. 19:11). But

“[t]he absence of evidence is not evidence.” 987 F.2d 1482, 1491 (10th

Cir. 1993). Thus, the lack of findings representing that Plaintiff had exaggerated her complaints

provides no basis on which to disrupt the ALJ’s findings. Second, Plaintiff states: “The ALJ’s …

failure to assess Claimant’s obesity and her chronic pain disorder—shows that the ALJ’s credibility

analysis is lacking.” (ECF No. 19:13). But Plaintiff does not further develop this argument and the

Court will, therefore, not consider it. , n. 2.

Family Medicine clinic also discharged Plaintiff from their care based on Plaintiff’s drug-

seeking behavior. . There is no evidence that Plaintiff was chemically dependent

on narcotics and would only be able to work while addicted to drugs. The ALJ properly

discounted Plaintiff’s subjective allegations by relying on her drug-seeking behavior and

no error exists. , 569 F.3d 1167, 1172 (10th Cir. 2009) (“there is

sufficient evidence in the record to support the ALJ’s determination that [the plaintiff’s]

credibility about her pain and limitations was compromised by her drug-seeking

behavior.”).

Second, Ms. Bevel argues that the ALJ improperly relied on Plaintiff’s activities of

daily living to discount her subjective allegations. (ECF No. 19:12-13). Specifically, Ms.

Bevel argues that the ALJ “failed to capture the essence of their performance, inferring

that ADLs are done on a daily basis and continually each day for eight hours … [and]

[m]inimal ADLs are not indicative of an ability to work on a full-time basis.” (ECF No.

19:12). The Court agrees with Ms. Bevel that it is well-established that a claimant’s

activities of daily living do not, , determine the claimant’s ability to work.

, 987 F.2d 1482, 1490 (10th Cir. 1993) (“sporadic performance

of household asks or work does not establish that a person is capable of engaging in

substantial gainful activity.”) (alteration and internal quotation marks omitted);

, 862 F.2d 802, 807 (10th Cir. 1988) (“[E]vidence that a claimant

engages in limited activities ... does not establish that the claimant can engage in light or

sedentary work activity.”). However, in addition to activities of daily living, the ALJ relied

on:

• Objective evidence, including MRIs and treatment notes;

• Plaintiff’s drug-seeking behavior; and

• Plaintiff’s use of medications and other treatments.

(TR. 21-26). Because the ALJ provided rationales in addition to Plaintiff’s “activities of

daily living,” the Court concludes that the ALJ’s evaluation of Plaintiff’s subjective

complaints was supported by substantial evidence. , 695

F.3d 1156, 1168 (10th Cir. 2012) (ALJ properly relied on plaintiff’s activities of daily living

as one factor to discount her credibility).

VIII. THE ALJ’S RELIANCE ON THE GRIDS

Ms. Bevel alleges the ALJ improperly relied on the Grids at step five. (ECF No.

19:7-10). The Court rejects this argument.

A. The Grids

At step five, the burden of proof shifts to the Commissioner “to show that the

claimant retains sufficient RFC [residual functional capacity] to perform work in the

national economy, given her age, education, and work experience.” , 602

F.3d 1136, 1139 (10th Cir. 2010) (alterations in original). One of the ways the

Commissioner can meet this burden is through use of “the Grids.” , 154

F.3d 1129, 1132 (10th Cir. 1998). The Grids are matrices of the “four factors identified

by Congress—physical ability, age, education, and work experience—and set forth rules

that identify whether jobs requiring specific combinations of these factors exist in

significant numbers in the national economy.” , at 1132 (citing

461 U.S. 458, 461–62 (1983). The Grids may provide a shortcut in certain

circumstances to determine whether a claimant can perform other work by obviating the

need for a vocational expert’s testimony. 966 F.2d 1326, 1332

(10th Cir. 1992).

Through the Grids, the Secretary has taken administrative notice of the number of

jobs that exist in the national economy at the various functional levels ( sedentary,

light, medium, heavy, and very heavy). 20 C.F.R. Part 404, Subpart P, Appendix 2, §

200.00(b). “Where the findings of fact made with respect to a particular individual’s

vocational factors and residual functional capacity coincide with all of the criteria of a

particular rule, the existence of jobs in the national economy for that claimant is

established, and the rule directs a conclusion as to whether the individual is or is not

disabled.” , at 1132 (citation and internal quotation marks omitted). However, the

Commissioner may not apply the Grids “conclusively in a given case unless the claimant’s

characteristics precisely match the criteria of a particular rule.” . An ALJ may not rely

on the Grids unless he determines that a claimant is able to perform a full range of work,

without any nonexertional impairments. , 508 F. App’x 705, 709 (10th

Cir. 2013).

B. No Error in the ALJ’s Reliance on the Grids

As support for this proposition, Plaintiff alleges error in the RFC determination

which, in turn, affected the step five findings. (ECF No. 19:7-10, 14-15). Specifically,

Plaintiff alleges: (1) the RFC failed to accommodate limitations owing to Plaintiff’s

fibromyalgia, degenerative disc disease, hypertension, obesity, and chronic pain disorder

and (2) the fibromyalgia is considered a nonexertional impairment which necessarily

precluded reliance on the Grids. (TR. 19:7-10, 14-15). The Court rejects these arguments.

1. No Error in the RFC

At step two, the ALJ found Plaintiff’s fibromyalgia and degenerative disc disease

to be severe impairments, but made no mention of Plaintiff’s hypertension, obesity, and

chronic pain disorder. (TR. 17). Even so, in formulating the RFC, the ALJ must discuss

the combined effect of all the claimant’s medically determinable impairments, both severe

and nonsevere. 727 F.3d 1061, 1065 (10th Cir. 2013). However, the

presence of an impairment, albeit severe, does not necessarily equate to corresponding

limitations in the RFC. , 2014 WL 7408430, at *2 (N.D. Okla. Dec. 30,

2014). The RFC need only include such limitations as the medical record substantially

supports. , at 650 (“Clearly, an ALJ doesn’t commit error by omitting

limitations not supported by the record”); , 438 F. App’x 735, 740 (10th

Cir. 2011) (rejecting plaintiff’s claim a limitation should have been included in his RFC

because “such a limitation has no support in the record”).

Here, Plaintiff alleges: (1) error in the RFC which failed to include limitations

stemming from her fibromyalgia, degenerative disc disease, hypertension, obesity, and

chronic pain disorder and (2) with such limitations, the ALJ could not conclusively rely on

the Grids at step five. (ECF No. 19:7-10). Ms. Bevel suggests that these impairments

would: (1) require unscheduled breaks to accommodate her need to recline and (2) cause

a reduction in her ability to concentrate and attend to tasks. (ECF No. 19:9-10). But Ms.

Bevel has not supported these allegations with any evidence in the record, nor identified

in the record work-related functional limitation necessitated by these conditions that

exceeds the limitations reflected in RFC. “[D]isability requires more than mere inability to

work without pain,” , 801 F.2d 361, 362 (10th Cir. 1986), and it is

Plaintiff’s burden to identify specific work-related limitations indicating that her pain or

complications from certain conditions was so severe as to be disabling.

, 482 U.S. 137, 146 n.5 (1987) (noting that the burden is on claimant to establish

disability in the first four steps of sequential analysis); , at 649 (rejecting

plaintiff’s argument regarding the alleged omission of certain limitations in an RFC

because “[plaintiff] doesn’t explain how [the RFC’s] restrictions fail to account” for his

impairments and “it isn’t our obligation to search the record and construct a party’s

arguments”). Accordingly, the Court concludes that Ms. Bevel has not met her burden to

establish that the ALJ erred in the RFC by failing to include limitations related to Plaintiff’s

fibromyalgia, degenerative disc disease, hypertension, obesity, and chronic pain disorder.

2. The Fibromyalgia did not Automatically Disqualify the ALJ’s

Reliance on the Grids

Plaintiff also argues that her fibromyalgia, by its nature, is a nonexertional

impairment that necessarily precluded reliance on the Grids at step five. (ECF No. 19:7-

8). In support, Plaintiff states that “the medical findings support Claimant’s allegations of

pain from the fibromyalgia” and that the ALJ engaged in “adjudicative sleight of hand” in

failing to include any limitations at step five. In support, Plaintiff cites ,

251 F. App’x 561, 566 (10th Cir. 2007). In , the Court found an “odd inconsistency”

between the ALJ’s finding of a mental impairment as “severe” at step two, but then finding

no limitations owing to the impairment at later steps in the disability determination.

Givens, at 567. But in Givens, the ALJ had given “no specific reasons, with reference to

the evidence, for his conclusions.” Jd. Here, the ALJ acknowledged Plaintiff’s fibromyalgia,

including her testimony regarding the effects of the condition and related medical

evidence. (TR. 20-21, 23-24). As discussed, no error exists in the ALJ’s evaluation of

Plaintiff's subjective allegations. See supra. And with respect to the medical evidence, the

ALJ extensively discussed Plaintiff’s treatment for fibromyalgia from Dr. Robert McArthur

for fibromyalgia, findings which Ms. Bevel does not challenge.

Unlike the situation in Givens, the ALJ adequately explained his treatment of

Plaintiff's fibromyalgia and his decision to not include any specific related limitations in

the RFC. Thus, with an RFC for a full range of sedentary work, the ALJ properly relied on

the Grids at step five.

ORDER

The Court has reviewed the medical evidence of record, the transcript of the

administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.

Based on the forgoing analysis, the Court AFFIRMS the Commissioner’s decision.

ENTERED on September 27, 2019.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

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