Nonnen v. Commissioner of the Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

RITA LEE NONNEN, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-657-STE

)

ANDREW M. SAUL, )

Commissioner of the Social Security )

Administration, )

)

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

applications 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 REVERSES AND

REMANDS the Commissioner’s decision.

I. PROCEDURAL BACKGROUND

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

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

an unfavorable decision. (TR. 15-34). The Appeals Council denied Plaintiff’s request for

review. (TR. 1-3). 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 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged

in substantial gainful activity since May 15, 2016, the alleged disability onset date. (TR.

18). At step two, the ALJ determined that Ms. Nonnen had the following severe

impairments: dysfunction of a major joint; bipolar disorder; depression; an intellectual

disorder; and a generalized anxiety disorder. (TR. 18). 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. 20).

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

capacity (RFC) to:

[P]erform sedentary exertion work as defined in 20 CFR 404.1567(a) and

416.967(a), except the claimant can never climb ladders, ropes, or

scaffolds; the claimant can occasionally crouch, crawl, and climb ramps and

stairs; and the claimant can frequently balance. Mentally, the claimant can

understand, remember, and carry out simple and detailed instructions, but

not complex instructions. The claimant can make judgments on simple and

detailed work-related decisions, but not complex work-related decisions.

The claimant is able to interact appropriately with the public. The claimant

can interact appropriately with co-workers and supervisors on an occasional

work basis. The claimant is able to respond appropriately to usual work

situations and changes in a work setting that is simple or detailed, but not

complex. The claimant has no other physical or mental limitations.

(TR. 24). Also, at step four, the ALJ found that Plaintiff was unable to perform any past

relevant work. (TR. 32).

At the administrative hearing, the ALJ presented these limitations to a vocational

expert (VE) to determine whether there were other jobs in the national economy that

Plaintiff could perform. (TR. 102-105). Given the limitations, the VE identified three jobs

from the Dictionary of Occupational Titles (DOT). (TR. 106-107). The ALJ adopted the

VE’s testimony and concluded that during the relevant period, Ms. Nonnen was not

disabled at step five based on her ability to perform the identified jobs. (TR. 33-34).

III. STANDARD OF REVIEW

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

Commissioner applied the correct legal standards and whether the agency’s factual

findings are supported by substantial evidence.” , 952 F.3d.

1172, 1177 (10th Cir. 2020) (citation omitted). 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. Nonnen alleges: (1) error in failing to develop the record; (2) error at step

three; (3) error in the RFC; (4) “harmful errors of fact” and (5) error at step five.

V. DEVELOPMENT OF THE RECORD

Plaintiff alleges that the ALJ erred in his development of the record by failing to

incorporate records from a 2013 disability application into the current record. (ECF No.

22:10; 29:3-5). The Court agrees.

An ALJ has the duty to develop he record by obtaining pertinent, available medical

records which come to his attention during the course of the hearing.

, 73 F.3d 1019, 1022 (10th Cir. 1996). As noted in the decision, Ms. Nonnen

previously applied for disability benefits in 2013. (TR. 15). At the administrative hearing,

the ALJ noted the 2013 applications and stated:

I would propose to make [Plaintiff’s] file as complete as possible. That we

take all the case data and case information that the commissioner chose to

preserve from the one back in 2013 and add it to the documents that we

have in the current file.

. . .

We’ll admit into evidence, then—thank you for all of that—exhibits numbers

1A through 8A, 1B though 16B, 1D through 11D, 1E through 16E, 1F

through 25 F, and of course, the documents from that 2013 file some time

ago.

(TR. 46, 47).

Despite the ALJ’s statement to incorporate the records from the 2013 case file to

the current record, a review of the evidence in the case file does not indicate that this

was done. TR. The Tenth Circuit Court of Appeals has held that “even if a doctor’s

medical observations regarding a claimant’s allegations of disability date from earlier,

previously adjudicated periods, the doctor’s observations are nevertheless relevant to the

claimant’s medical history and should be considered by the ALJ.” , 365

F.3d 1208, 1215 (10th Cir. 2004) (citing 148 F.3d 809, 810–11 (7th Cir.

1998) (noting that evidence submitted in earlier application for benefits is relevant to

subsequent disability application when determining whether claimant is disabled by a

progressive condition)). Mr. Saul argues that the 2013 records “were wholly irrelevant to

the ALJ” because: (1) the ALJ did not rely on them in finding Plaintiff not disabled and

(2) the ALJ refused to re-open Plaintiff’s prior application. (ECF No. 25:7). Neither

argument is persuasive.

First, the ALJ’s own reference to incorporating the former records indicates that

he believed they might have been relevant to the current decision. Obviously, the ALJ did

not undertake a detailed review of the evidence at the time of the hearing; rather he

waited until the hearing had concluded to review the file and render his decision. But for

whatever reason, the 2013 file records were not added to the current file. Without the

records, the Commissioner cannot definitely conclude that the ALJ would have reached

the same finding of non-disability, especially in light of the ALJ’s decision to incorporate

the earlier evidence.

Second, the Tenth Circuit has rejected the argument that an examination of

medical evidence from an earlier, adjudicated period somehow re-opens a prior disability

application. , 365 F.3d at 1215, n. 8. As a result, the Court finds Defendant’s

second argument without merit.

Because the ALJ deemed the prior evidence necessary to render the current file

“complete,” these records shall be incorporated into the record on remand.

VI. STEP THREE

Plaintiff alleges the ALJ committed legal error at step three in the consideration of

her mental impairments. (ECF No. 22:13-18). The Court disagrees.

A. Criteria at Step Three

At step three, the ALJ must determine whether the claimant’s impairment is

“equivalent to one of a number of listed impairments that the Secretary acknowledged

as so severe as to preclude substantial gainful activity.” , 79 F.3d 1007,

1009 (10th Cir. 1996). If this standard is met, the claimant is considered disabled.

, 755 F.2d 141, 146 (10th Cir. 1985). The question of whether a claimant

meets or equals a listed impairment is strictly a medical determination. ,

929 F.2d 534, 536 (10th Cir. 1990); 20 C.F.R. §§ 404.1525(c)(3)-(4), 404.1526(b),

416.925(c)(3)-(4), 416.926(b). “The claimant has the burden at step three of

demonstrating, through medical evidence, that his impairments “meet of the specified

medical criteria” contained in a particular listing. , 493 U.S. 521, 530

(1990) (emphasis in original). “An impairment that manifests only some of those criteria,

no matter how severely, does not qualify.”

Once the claimant has produced such evidence, the burden is on the ALJ to identify

and discuss any relevant listings. , 431 F.3d 729, 733 n. 3 (10th

Cir. 2005). In doing so, the ALJ must weigh the evidence and make specific findings to

support the step three determination. , 79 F.3d at 1009.

B. The ALJ’s Step Three Findings

At step three, the ALJ considered Listings 12.04 (depressive, bipolar, or related

disorders); 12.05 (intellectual disorder); and 12.06 (anxiety or obsessive-compulsive

disorder) in considering whether Plaintiff’s mental impairments met or equaled a listing.

(TR. 21-24). In doing so, the ALJ considered: (1) the opinions of State Agency

psychologists, Dr. Randy Cochran and Dr. Letitia Sandrock; (2) examination findings from

various medical professionals at St. Anthony’s Hospital and Red Rock Behavioral Health

Services; and (3) a “Disability Report” and “Function Report” completed by Ms. Nonnen.

TR. 21-22.

Listings 12.04 and 12.06 require that the individual satisfy criteria “A” and “B” or

“A” and “C”. Listings 12.04 & 12.06. For both Listings, the “B” criteria require:

Extreme limitation of one, or 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;

4. Adapt or manage oneself

Listings 12.04 & 12.06.

For both Listings, the “C” criteria require:

The individual’s mental disorder to be ‘‘serious and persistent;’’ that is, the

presence of a medically documented history of the existence of the disorder

over a period of at least 2 years, and there is evidence of both:

1. Medical treatment, mental health therapy, psychosocial support(s), or a

highly structured setting(s) that is ongoing and that diminishes the

symptoms and signs of your mental disorder; and

2. Marginal adjustment, that is, you have minimal capacity to adapt to

changes in your environment or to demands that are not already part of

your daily life.

Listings 12.04 & 12.06.

In concluding that Plaintiff did not satisfy the “B” criteria of either Listing, the ALJ

found that Ms. Nonnen had suffered only “moderate” limitations of mental functioning in

all four areas. TR. 21-22. In concluding that Plaintiff did not satisfy the “C” criteria,

of either Listing, the ALJ found:

• “The record did not establish that the claimant had only marginal

adjustment, that is, a minimal capacity to adapt to changes in the claimant’s

environment or to demands that are not already part of the claimant’s daily

life;” and

• “[T]he record shows the claimant can function adequately outside a highly

supported setting.”

(TR. 22).

Listing 12.05 requires satisfaction of either the “A” or “B” criteria:

A. Satisfied by 1, 2, and 3:

1. Significantly subaverage general intellectual functioning evident in

your cognitive inability to function at a level required to participate

in standardized testing of intellectual functioning;

2. Significant deficits in adaptive functioning currently manifested by

your dependence upon others for personal needs (for example,

toileting, eating, dressing, or bathing); and

3. The evidence about your current intellectual and adaptive

functioning and about the history of your disorder demonstrates or

supports the conclusion that the disorder began prior to your

attainment of age 22.

B. Satisfied by 1, 2, and 3:

1. Significantly subaverage general intellectual functioning evidenced

by a or b:

a. A full scale (or comparable) IQ score of 70 or below on an

individually administered standardized test of general

intelligence; or

b. A full scale (or comparable) IQ score of 71–75 accompanied

by a verbal or performance IQ score (or comparable part

score) of 70 or below on an individually administered

standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by

extreme limitation of one, or marked limitation of two, of the

following areas of mental functioning:

a. Understand, remember, or apply information;

b. Interact with others;

c. Concentrate, persist, or maintain pace; or

d. Adapt or manage oneself

3. The evidence about your current intellectual and adaptive

functioning and about the history of your disorder demonstrates or

supports the conclusion that the disorder began prior to your

attainment of age 22.

Listing 12.05. In determining that Plaintiff did not satisfy Listing 12.05, the ALJ found:

• The “A” criteria were not satisfied because “there is no evidence the

claimant is not able to participate in standardized testing of intellectual

functioning” and “a psychological evaluation found the claimant had

strengths in adaptive skills;” and

• The “B” criteria were not satisfied because “the claimant does not have

more than moderate mental limitations due to her conditions” and

“treatment notes indicate the claimant’s symptoms had improved.

(TR. 23, 24).

C. Plaintiff’s Allegations

Plaintiff alleges six errors in connection with the ALJ’s consideration of the evidence

at Step Three. (ECF No. 13-18). The Court finds no merit in Plaintiff’s arguments.

First, Plaintiff alleges that the ALJ “gave more weight in his analysis of the

Claimant’s mental limitation to Dr. Cochran’s opinion than he did to any of her past

physicians or treatment centers, despite Dr. Cochran having a suspended license for

violations of the Psychologists Licensing Act and Rules of the Board. The ALJ should have

looked at the total medical history of the Claimant, instead of relying solely on medical

opinions from a suspended State psychologist.” (ECF No. 22:13-14). The Court rejects

this allegation of error, because the ALJ did not solely rely on Dr. Cochran’s opinion, but

instead referenced examination notes from medical professionals at St. Anthony’s hospital

and Red Rock Behavioral Health Services. ; TR. 21-22. Furthermore, Dr.

Cochran rendered his opinion on October 10, 2018, prior to his license suspension on

April 19, 2019, thus the ALJ was entitled to rely on the opinion. TR. 185

ECF No. 22-1.

Second, Ms. Nonnen alleges error in the ALJ’s reliance on Dr. Sandrock’s opinion

because Dr. Sandrock had only analyzed whether Plaintiff had met Listing 12.04. (ECF

No. 22:14). But as stated, the ALJ relied on other evidence and medical opinions in

concluding that Plaintiff had not met Listings 12.04, 12.05, and 12.06. . As a

result, the Court finds this challenge without merit.

Third, Plaintiff argues error in relying on the opinions from Dr. Cochran and Dr.

Sandrock because these psychologists never actually examined Plaintiff and “it is unclear

which medical records were actually reviewed by them.” (ECF No. 22:14). Again, the

Court disagrees. A medical professional’s examining relationship with the claimant is only

one factor which is considered when the ALJ evaluates a medical opinion. 20 C.F.R.

§§ 404.1520c(c); 416.920c(c). Thus, the ALJ’s consideration of the State Agency

psychologist’s opinions despite the lack of an examining relationship was acceptable.

Additionally, both Dr. Cochran and Dr. Sandrock listed the medical records they reviewed

prior to rendering their opinions. TR. 178-185, 195-203.

Fourth, Plaintiff alleges that the ALJ failed to discuss findings from a series of

psychological examinations in August and September 2019 which included Plaintiff

scoring below the first percentile in areas of attention, concentration and mathematical

manipulation, and scoring in the second percentile in her ability to process and retain

information. But Ms. Nonnen has not explained how those findings would support the

finding of a listed impairment. Furthermore, although the ALJ did not discuss these

findings at step three, he undertook a thorough examination of the findings in discussing

Plaintiff’s RFC at step four. TR. 27-28. This allegation is without merit.

Fifth, Plaintiff takes issue with the ALJ’s consideration of Listing 12.05–Intellectual

Disorder. According to Ms. Nonnen, the ALJ ignored: (1) significant evidence related to

Plaintiff’s deficits in various areas of adaptive functioning and (2) Plaintiff’s low IQ score.

(ECF No. 22:15-17). The Court concludes that any error in this regard was harmless.

As stated, an individual can meet Listing 12.05 by satisfying the criteria in

subsection (A) or (B). . Even if the ALJ had erred in ignoring evidence of

Plaintiff’s adaptive functioning or IQ scores, subsection (A) would still have not been

satisfied based on the ALJ’s finding that Plaintiff was able to participate in standardized

testing of intellectual functioning, a finding which Plaintiff does not challenge. Thus, the

pertinent Listing is 12.05(B), which requires a finding that three elements have been met:

1. Significantly subaverage general intellectual functioning evidenced

by a or b:

a. A full scale (or comparable) IQ score of 70 or below on an

individually administered standardized test of general

intelligence; or

b. A full scale (or comparable) IQ score of 71–75 accompanied

by a verbal or performance IQ score (or comparable part

score) of 70 or below on an individually administered

standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by

extreme limitation of one, or marked limitation of two, of the

following areas of mental functioning:

a. Understand, remember, or apply information;

b. Interact with others;

c. Concentrate, persist, or maintain pace; or

d. Adapt or manage oneself; and

3. Evidence about the individual’s current intellectual and adaptive

functioning and about the history of the disorder which demonstrates

or supports the conclusion that the disorder began prior to age 22.

At step three, the ALJ concluded that subsection (B) had not been met based on

a finding that Plaintiff suffered from only “moderate” mental limitations—i.e.—the areas

of functioning outlined in (2). (TR. 24). In support of his finding in the area of Plaintiff’s

ability to “adapt or manage oneself,” the ALJ relied on: (1) the 2019 psychological

examination which found that Plaintiff “had strengths in adaptive skills;” (2) Plaintiff’s

“appropriate appearance and grooming; (3) Plaintiff’s “feeling overwhelmed;” and (4)

Plaintiff’s “need[ing] help or encouragement to do things.” (TR. 22).

According to Ms. Nonnen, the ALJ ignored a significant amount of evidence related

to deficits in adaptive functioning set forth in the 2019 psychological evaluation. (ECF No.

22:15-16). The evaluation utilized the Adaptive Behavior Assessment System-Third

Edition (ABAS-3) to assess Plaintiff’s adaptive functioning. (TR. 1024-1025). The ABAS-3

measured Plaintiff’s adaptive functioning in the areas of:

• Home living, health, and safety;

• Communication;

• Community use;

• Adaptative functioning at work;

• Functional academics and self-direction; and

• Social and leisure.

(TR. 1024-1025). According to Plaintiff, the ALJ ignored evidence from the evaluation

report which concluded that Ms. Nonnen displayed deficits in these areas. (ECF No. 22:15-

16). Indeed, in every functional area, the report noted areas in which Plaintiff struggled.

TR. 1024-1025. However, any error by the ALJ in failing to consider this evidence at

step three is rendered harmless by the ALJ’s subsequent review of the evidence at step

four.

At step four, the ALJ thoroughly reviewed the 2019 psychological evaluation and

concluded:

[O]n the ABAS-3, Mrs. Nonnen reported notable limitations in adaptive skills

across numerous areas, including: communication, community use, work,

functional academics, self-direction, social, and leisure. Examples of these

limitations include being unable to independently answer complex

questions, follow paper/digital maps to find a destination, follow a daily

work schedule, carry money or make small purchases, plan for the future,

or seek and maintain friendships with others her age. Based on Mrs.

Nonnen’s observed deficits in intellectual or adaptive functioning, a

diagnosis of Intellectual Disability, Moderate is warranted. . . . Mrs. Nonnen

has significant difficulty with intellectual and adaptive functioning in terms

of employment, in social interactions, and in daily living activities. However,

the claimant’s “paragraph B” abilities do not reveal extreme findings.

(TR. 27-28). Based on the ALJ’s specific finding that Plaintiff’s deficits in adaptive

functioning would not result in an “extreme” limitation, the Court can decisively find that

the ALJ would not have reached a different conclusion with regards to Listing 12.05(B),

even if he had considered the evidence at step three, based on the absence of evidence

supporting 12.05(B)(2). Thus, any error committed by the ALJ at step three in failing to

discuss the ABAS-3 evidence when evaluating Listing 12.05 was harmless.

, 431 F.3d 729, 735 (10th Cir. 2005) (finding: “the ALJ’s confirmed

findings at steps four and five of his analysis, . . . conclusively preclude Claimant’s

qualification under the listings at step three. No reasonable factfinder could conclude

otherwise. Thus, any deficiency in the ALJ’s articulation of his reasoning to support

his step three determination is harmless.”).

As stated, Plaintiff also alleges that the ALJ erred at step three by failing to discuss

her low IQ score. . But this allegation is without merit because even with

Plaintiff’s full-scale IQ of 57,1 Plaintiff could still not meet Listing 12.05 in the absence of

subsection (2).

Finally, and in support of a finding that she met Listing 12.04, Plaintiff notes

medical records which document a depressed mood, diminished interest in activities,

appetite disturbance with change in weight, decreased energy, feelings of guilt and

worthlessness as evidence, difficulty in concentrating and thoughts of death and suicide.2

But Ms. Nonnen has not explained how this evidence would satisfy the criteria of Listing

12.04. As a result, the Court finds this allegation without merit.

VII. RFC LIMITATIONS

Plaintiff alleges that the ALJ committed legal error by failing to account for all of

her limitations in the RFC. (ECF No. 22:7-9). Specifically, Ms. Nonnen alleges: (1) the ALJ

ignored non-severe impairments and failed to account for them in the RFC; (2) the ALJ

ignored permanent restrictions from a treating physician, without explanation, and failed

to include them in the RFC; and (3) the ALJ failed to analyze the impact of Plaintiff’s

mental impairments on her RFC. (ECF No. 22:7-9). The Court finds merit in Plaintiff’s

second argument.

1 TR. 1021.

2 Plaintiff does not specifically cite Listing 12.04, but she references Listing 12.00(B)(3)(a), which

defines the characteristics of Listing 12.04. ECF No. 22:18; Listing 12.00(B)(3)(a).

A. Non-Severe Impairments

Ms. Nonnen first alleges that in the RFC, the ALJ failed to account for her non-

severe impairments involving stress incontinence, chronic knee and hip pain, and being

off-task. (ECF No. 22:7). According to Plaintiff, “nothing was included in the RFC to

account for extra bathroom breaks to account for Ms. Nonnen’s improved but still existing

stress incontinence, . . . [or] need to change positions or have extra breaks due to her

ongoing chronic knee and hip pain. . . [or] to be off-task in the workplace for even a

short amount of time due to ongoing pain[.]” (ECF No. 22:7). But Plaintiff does not point

to any evidence in the record in support of limitations related to these areas, and the

Court will not comb the record for evidentiary support. , 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.”); , 2011 WL 2144610, at

* 6 (W.D. Okla. May 14, 2011) (rejecting allegation of error for “failure to develop the

factual—and legal—bases for [the] argument.”); 43 F.3d 1388,

1389 n. 2 (10th Cir. 1994) (finding that inadequately framed or developed “perfunctory

complaints” are insufficient to invoke review).

B. Permanent Restrictions

On October 9, 2017, treating physician Dr. Brandon Johnson examined Plaintiff

and opined that she would need permanent work-related restrictions involving: Light

duty, no lifting, pushing, or pulling over 20 pounds, no climbing, no stooping, and no

twisting. (TR. 785). Ms. Nonnen alleges that the ALJ ignored, without explanation, Dr.

Johnson’s opinion, and the Court agrees.

1. ALJ’S Duty to Evaluate Medical Opinions

Regardless of its source, the ALJ has a duty to evaluate every medical opinion in

the record. , 365 F.3d 1208, 1215 (10th Cir. 2004); 20 C.F.R. §

404.1527(c) & 416.927(c). For claims filed after March 27, 2017, such as that filed by Ms.

Nonnen,3 20 C.F.R. §§ 404.1520c and 416.920c, provide that the Commissioner no longer

will “defer or give any specific evidentiary weight, including controlling weight, to any

medical opinion(s)[.]” 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). Instead, the ALJ need

only articulate how persuasive he finds the medical opinion. 20 C.F.R. §§ 404.1520c(b)

& 416.920c(b). Persuasiveness is determined primarily by an opinion’s supportability and

consistency, and the ALJ must explain how he considered those factors. 20 C.F.R. §§

404.1520c(b)(2) & (c)(1)-(2) & 416.920c(b)(2) & (c)(1)-(2). In addition, the ALJ may,

but is not required to, discuss other considerations that may bear on the persuasiveness

of a medical opinion, such as the relationship of the source to the claimant, the source’s

area of specialization, and other factors such as the source’s familiarity with the disability

program’s policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c)(3)-(5) &

416.920c(c)(3)-(5). The ALJ’s rationale must be “sufficiently specific” to permit

meaningful appellate review. , 509 F.3d 1254, 1258 (10th Cir.

2007).

Additionally, the ALJ may not selectively review any medical opinion and must

provide a proper explanation to support his findings. , 682 F.3d 1285,

3 TR. 15.

1292 (10th Cir. 2012) (“We have repeatedly held that [a]n ALJ is not entitled to pick and

choose through an uncontradicted medical opinion, taking only the parts that are

favorable to a finding of nondisability.”); , 79 F.3d 1007, 1010 (10th Cir.

1996) (the ALJ must “discuss[ ] the evidence supporting [the] decision” and must also

“discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly

probative evidence [the ALJ] rejects.”); And if the ALJ rejects an opinion completely, he

must give “specific, legitimate reasons” for doing so. , 350 F.3d 1297,

1300 (10th Cir. 2003) (internal citations omitted).

2. Error in the ALJ’s Consideration of Dr. Johnson’s Opinion

Despite a 20-page extremely thorough opinion, the ALJ omitted, without

explanation, discussing the permanent restrictions given by Dr. Johnson. The

Commissioner argues otherwise, stating: “The ALJ found Dr. Johnson’s opinion persuasive

(Tr. 30), but limited Plaintiff to sedentary work that involved occasional crouching,

crawling, and climbing (Tr. 24).” (ECF No. 25:9). Defendant’s argument is not persuasive.

Mr. Saul’s reference to the ALJ’s consideration of Dr. Johnson’s opinion involved

temporary restrictions given by Dr. Johnson on April 20, 2017, not the permanent

restrictions given on October 9, 2017. TR. 29, 30. And although the opinions offered

the same restrictions, the Court is unable to track the ALJ’s reasoning in his consideration

thereof. For example, although the ALJ found Dr. Johnson’s opinion persuasive, he

appeared to reject the physician’s opinion that Plaintiff would need a job involving no

stooping or twisting, as the RFC was silent as to those particular limitations. TR. 24.

The Commissioner attempts to defend the omission by arguing that Dr. Johnson’s opinion

is consistent with the jobs identified by the VE at step five. (ECF No. 25:9-10). According

to Mr. Saul: “Each job [relied on at step five] is a sedentary job, and thus does not require

lifting more than 10 pounds. . . [and] each job requires no crawling, climbing, [or]

crouching.” (ECF No. 25:10).

As an initial matter, the Court notes that at step five, the ALJ found, based on

testimony from the VE, that Plaintiff was capable of performing the job of bench assembly

worker, DOT 723.687-010. (TR. 33). As pointed out by Plaintiff, the DOT job number

provided by the ALJ actually correlates with the job of “patcher” rather than “bench

assembly worker.” ECF No. 22:5; Compare DOT 723.687-010 (patcher) with DOT

706.684-042 (bench assembly worker). Mr. Saul defends the citation to the job of

“patcher,” stating that the job is “ assembler job, covering electrical components with

insulating fabric.” (ECF No. 25:9) (emphasis added). The Court, however, is not convinced

that the ALJ meant to cite the job of “patcher” rather than the job of “bench assembler,”

because the latter was identified by the VE at the hearing4 and the jobs, although similar,

have some differing exertional requirements. Without clarification, the Court discounts

the ALJ’s reliance on that job, leaving the ALJ’s step five finding that Plaintiff could

perform the jobs of document preparer and food and beverage order clerk. (TR. 33-34).

As to those jobs, Mr. Saul’s argument is still problematic in that he, too, omits any

reference to Dr. Johnson’s limitations on stooping and twisting. Although neither job

4 TR. 106-107.

involves stooping,5 the limitation of twisting required testimony from a VE because it is

not addressed by the Selected Characteristics of Occupations (SCO) which applies to jobs

outlined in the DOT. , 2015 WL 4666158, at *10 (N.D. Okla. 2015)

(stating: “The SCO does not address the physical demand of twisting, so the ALJ would

have to rely on the testimony of a vocational expert to determine whether plaintiff could

perform other work with a limitation on twisting.”) (

in , 2015 WL 4666091 (N.D. Okla. Aug. 6,

2015). The VE did not testify as to the impact of twisting on the ability to perform either

job, owing to the fact that the ALJ failed to present such limitation in the hypothetical to

the VE at the administrative hearing. TR. 102-105. The ALJ was not required to

present the limitation in the hypothetical, but only after he had first provided a reasonable

explanation regarding why he had rejected the limitation in the first instance. The ALJ

failed to do so and the error warrants remand. See , 2017 WL

6624025, at *5-*6 (W.D. Okla. Dec. 28, 2017) (remanding for consideration of treating

physician’s opinion regarding twisting limitation when the ALJ failed to comment on the

opinion and the limitation was not present in the RFC).

C. Mental Impairments

In her final allegation of error challenging the RFC, Plaintiff argues that the ALJ:

(1) failed to specifically analyze the impact of Plaintiff’s mental impairments involving her

limited reading ability and bipolar episodes and (2) failed to explain why he ignored severe

5 DOT 249.587-018 (document preparer) & 109.567-014 (food and beverage order clerk).

mental impairments at step four. (ECF No. 22:8-9; 29:1-2). The Court finds that neither

of these arguments have merit.

First, regarding Plaintiff’s limited reading ability and bipolar episodes, Ms. Nonnen

has not identified in the record any work-related functional limitation necessitated by

either limitation that exceeds the limitations reflected in the RFC. (ECF No. 22:8-9). As

stated, it is Plaintiff’s burden to identify specific work-related limitations related to the

limitations and the Court will not search the record in an attempt to construct Plaintiff’s

argument. , 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);

, 663 F. App’x 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”).

Second, regarding mental impairments deemed severe at step two, Plaintiff states:

“the ALJ found that [Plaintiff] has at least five (5) severe impairments, four (4) of which

are mental impairments, at Step 2, yet indicates in his step four analysis that ‘the claimant

does not have any more than moderate mental limitations due to her conditions.’ ” (ECF

No. 22:9). Ms. Nonnen has misstated the record. The ALJ’s finding regarding “moderate

mental limitations” was a finding made at step three, during the ALJ’s consideration of

the Listings, not a finding made at step four. TR. 24. Even so, Plaintiff maintains that

the step two “severe” impairments “absolutely have an effect on her ability to obtain and

maintain work, and if actually considered, would have been included in her RFC.” (ECF

No. 22:9). But again, Plaintiff has failed to explain how, exactly, the impairments would

have impacted the RFC or affected her ability to work. Without more, the Court rejects

this allegation.

VIII. ALLEGED HARMFUL ERRORS OF FACT

In proposition (D) of her brief, Ms. Nonnen alleges “harmful errors of fact in the

analysis of the medical records and the consistency of claimant’s statements.” (ECF No.

22:18). Specifically, Plaintiff alleges three errors, but the Court finds them to be without

merit.

A. Listing 1.02

First, Plaintiff challenges the ALJ’s step three evaluation of Listing 1.02, which

pertains to a major dysfunction of a joint—in this case, Plaintiff’s right hip. Listing 1.02

states:

Major dysfunction of a joint(s) (due to any cause): Characterized by gross

anatomical deformity (e.g., subluxation, contracture, bony or fibrous

ankylosis, instability) and chronic joint pain and stiffness with signs of

limitation of motion or other abnormal motion of the affected joint(s), and

findings on appropriate medically acceptable imaging of joint space

narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e.,

hip, knee, or ankle), resulting in inability to ambulate effectively, as

defined in 1.00B2b; or

B. Involvement of one major peripheral joint in each upper extremity

(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform

fine and gross movements effectively, as defined in 1.00B2c.

Listing 1.02. At step three, the ALJ concluded that Plaintiff’s hip impairment did not meet

or equal Listing 1.02. (TR. 21). In doing so, the ALJ outlined the requirements for Listing

1.02 and stated:

Here, the claimant alleged the symptoms of right hip pain. (See, e.g., Ex.

8F, 1; Ex. 15F, 2). However, despite finding an antalgic gait, examinations

showed normal range of motion, ability to move all extremities, no sensory

deficit, normal muscle strength and tone, normal reflexes, no extremity

edema, and ability to ambulate without assistive devices. (See, e.g., Ex. 8F,

2, 10; Ex. 10F, 19, 41, 57).

(TR. 21). According to Ms. Nonnen, the ALJ ignored evidence related to her hip pain and

improperly relied on evidence in his explanation.

First, Plaintiff alleges that the ALJ ignored the fact that Exhibit 8F at 2 noted pain

in her lumbar spine, right buttocks, and sciatic area along with reduced range of motion

and a positive straight leg test. (ECF No. 22:19). Ms. Nonnen also points out that in

Exhibit 8F at page 10, the ALJ ordered a formal examination of Plaintiff’s hip. But Plaintiff

does not explain how these findings would have satisfied the criteria for Listing 1.02.

Thus, the Court finds no error in the ALJ’s failure to specifically note these findings.

, 79 F.3d at 1009–10 (“The record must demonstrate that the ALJ considered all

of the evidence, but an ALJ is not required to discuss every piece of evidence.”).

Second, Plaintiff also challenges the ALJ’s reliance on exhibit 10F at page 19—

acknowledging that the record noted normal range of motion, but alleging the ALJ

improperly relied on the same because the record was dated July 17, 2015—almost a full

year prior to Plaintiff’s hip injury. (ECF No. 22:19). However, as noted, the ALJ also relied

on Exhibit 10F at pages 41 and 57, dated January 4, 2018 July 19, 2018—after Plaintiff’s

May 2016 workplace injury—which found normal range of motion. TR. 891, 907.

Thus, any improper reliance on the record which pre-dated Plaintiff’s injury was harmless.

B. The ALJ’s Consistency Analysis

Plaintiff argues that the ALJ’s consistency analysis was flawed. In evaluating a

claimant’s symptoms, the ALJ must determine whether the claimant’s statements about

the intensity, persistence, and limiting effects of symptoms are consistent with the

objective medical evidence and other evidence of record. Social Security Ruling (“SSR”)

16-3p, 2016 WL 1119029, at *7 (Mar. 16, 2016). If they are consistent, then the ALJ “will

determine that the individual’s symptoms are more likely to reduce his or her capacities

to perform work-related activities.” If they are inconsistent, then the ALJ “will

determine that the individual's symptoms are less likely to reduce his or her capacities to

perform work-related activities.” Factors the ALJ should consider in this analysis

include:

• the claimant’s attempts to find relief and willingness to try any treatment

prescribed;

• a claimant’s regular contact with a doctor;

• the possibility that psychological disorders combine with physical problems;

• the claimant’s daily activities; and

• the dosage, effectiveness, and side effects of the claimant’s medication.

, 695 F.3d 1156, 1167 (10th Cir. 2012); SSR 16-3p at

*7 (listing similar factors); 20 C.F.R. §§ 404.1529(c)(3) 416.929(c)(3).

Consistency findings are “peculiarly the province of the finder of fact,” and courts

should “not upset such determinations when supported by substantial evidence.”

, 552 F.3d 1182, 1190 (10th Cir. 2008) (quoting , 68 F.3d 387,

391 (10th Cir. 1995)). As long as the ALJ sets forth the specific evidence he relies on in

evaluating the consistency of the claimant’s subjective complaints with other evidence,

the ALJ “need not make a formalistic factor-by-factor recitation of the evidence.”

, 695 F.3d at 1167 (quotations omitted). “[C]ommon sense, not technical

perfection, is [the reviewing court’s] guide.”

Ms. Nonnen alleges that the consistency finding is not supported by substantial

evidence because the ALJ relied on forms completed by Plaintiff, but failed to mention

that Plaintiff had not personally completed the forms because she had difficulty reading.

(ECF No. 22:19). According to Plaintiff, the forms “were filled out by third parties and

were not fully accurate.” (ECF No. 22:19-20). But Plaintiff does not allege how the forms

were inaccurate or otherwise substantiate this allegation. ECF No. 22:20. Plaintiff

also alleges that the ALJ mischaracterized the evidence by stating that Plaintiff could

“drive a vehicle and shop in stores.” (ECF No. 22:20). According to Ms. Nonnen, the ALJ

failed to mention that Plaintiff only drives if she is “going to the dollar store down the

street” and that she had to have the driving test written questions read to her. (ECF No.

22:20-21). But even eliminating the rationale of Plaintiffs ability to drive as a basis for his

consistency analysis, the Court concludes that the ALJ’s evaluation was otherwise

supported by substantial evidence, as the ALJ relied on:

• Plaintiff’s daily activities, including the ability to prepare simple meals, do

laundry, and wash dishes, clean the house, go outside, play cards, watch

television, play on the phone, and spend time with others;

• The fact that Plaintiff worked part-time after the alleged onset date;

• Treatment notes which indicated Plaintiff’s symptoms had improved;

• Plaintiff’s testimony that she could speak and read English; and

• An inconsistency in Plaintiff’s statements regarding whether she had ever

attended Special Education classes.

(TR. 32). Finally, Ms. Nonnen alleges that the claimant’s medical records and testimony

provide an “overwhelming amount of supporting evidence” which contradicts the ALJ’s

consistency findings. (ECF No. 22:21). But Plaintiff has failed to develop this argument or

cite to specific evidence in support of this argument, rendering it meritless.

In sum, the Court finds the ALJ’s consistency analysis was appropriate and satisfied

SSR 16-3p. Accordingly, the Court rejects this allegation of error.

C. Plaintiff’s Mental Impairments

In evaluating Plaintiff’s mental impairments, the ALJ had to rate the degree of

Plaintiff’s functional limitations in four areas: (1) understand, remember, or apply

information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4)

adapt or manage oneself. 20 C.F.R. §§ 404.1520a & 416.920a. The ALJ complied with

this procedure and found Plaintiff suffered from “moderate” limitations in all four areas.

(TR. 22). Ms. Nonnen challenges the ALJ’s conclusions, alleging fault with the ALJ’s

reliance on certain evidence in support of his findings and alleging that he should have

considered other evidence to reach a different conclusion. ECF No. 22:22-25. The

Court rejects this challenge, as it amounts to nothing more than an attempt to re-weigh

the evidence, which the Court cannot do. , 805 F.3d 1199, 1201 (10th

Cir. 2015) (the court will “neither reweigh the evidence nor substitute [its] judgment for

that of the agency.”) (internal quotation marks omitted).

IX. STEP FIVE

As stated, at step five, the ALJ concluded that Plaintiff was not disabled based on

her ability to perform the jobs of document preparer and food and beverage order clerk.

. Both jobs require “reasoning level 3;” “math level 1;” and “language level 2.”

DOT 249.587-018 (document preparer) & DOT 209.567-014 (food and beverage

order clerk). Ms. Nonnen alleges that the step five finding lacked substantial evidence

because Plaintiff’s mental impairments were inconsistent with those required by the

identified jobs. (ECF No. 22:11-13; 29:2-3, 5-7).

However, based on the recommended remand for reconsideration of Dr. Johnson’s

opinion and the inclusion of additional evidence, the step five findings may change. As a

result, the Court makes no finding on the step five issue and declines consideration of

the same. , 366 F.3d 1078, 1085 (10th Cir. 2004) (“We will not

reach the remaining issues raised by claimant because they may be affected by the ALJ’s

resolution of this case on remand.”).

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 REVERSES AND REMANDS the

Commissioner's decision.

ENTERED on June 30, 2021.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

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