Brown v. Commissioner of the Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ANITA BROWN O/B/O, )

BENNY M. BROWN, JR., DECEASED )

)

Plaintiff, )

)

v. ) Case No. CIV-20-692-STE

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant.1 )

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’s2 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 AFFIRMS the

Commissioner’s decision.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Therefore,

pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be

substituted as the defendant in this suit. 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).

2 Any reference to “Plaintiff” throughout this Memorandum will refer to the claimant, Benny M.

Brown, Jr., who is now deceased.

I. PROCEDURAL BACKGROUND

Initially and on reconsideration, the Social Security Administration denied

Plaintiff’s applications for benefits. Following an administrative hearing, an

Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 17-30). The

Appeals Council denied Plaintiff’s request for review. (TR. 6-8). 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 24, 2015, the alleged onset date. (TR. 19). At

step two, the ALJ determined Mr. Brown suffered from the following severe

impairments: degenerative disc disease of the lumbar and cervical spines; chronic

obstructive pulmonary disease; traumatic partial amputation of two fingers on the left

hand; bilateral degenerative joint disease in the knees; and neuropathy. (TR. 20). 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. 23).

At step four, the ALJ concluded that Mr. Brown retained the residual functional

capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b),

except the claimant can frequently grip, handle, finger, and feel with the

dominant right hand; occasionally grip, handle, finger, and feel with the

nondominant left hand; must avoid concentrated exposure to fumes,

odors, dusts, gases, and poor ventilation; must avoid exposure to

workplace hazards, such as moving mechanical parts and unprotected

heights; and must never climb ladders, ropes, or scaffolds.

(TR. 24).

With this RFC, the ALJ concluded that Mr. Brown could not perform his past

relevant work. (TR. 28). Thus, the ALJ presented the RFC limitations to a vocational

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

Plaintiff could perform. (TR. 128). Given the limitations, the VE identified three jobs

from the Dictionary of Occupational Titles. (TR. 129). At step five, the ALJ adopted the

VE’s testimony and concluded that Mr. Brown was not disabled based on his ability to

perform the identified jobs. (TR. 29-30).

III. ISSUES PRESENTED

On appeal, Plaintiff alleges error in the ALJ’s evaluation of: (1) Plaintiff’s

pain/subjective allegations and (2) mental health. (ECF Nos. 21:4-15, 26:3-10).3

IV. 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”

3 In the opening brief, Mr. Brown presents his allegations of error as two-fold. In his first

proposition, Plaintiff alleges error in the ALJ’s consideration of Plaintiff’s pain and mental health.

(ECF No. 21:4-12). In his second proposition, Mr. Brown argues “the ALJ failed to properly

assess the consistency of Mr. Brown’s complaints with the evidence of record” due to the

alleged errors in proposition one. (ECF No. 21:14-15). As will be discussed more thoroughly

below, the ALJ’s evaluation of a claimant’s allegations of pain and consistency of his allegations

with other evidence in the record are part of a single analysis, as set forth in Social Security

Ruling 16-3p. . Thus, the Court will treat the allegations as a single challenge.

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).

V. NO ERROR IN THE ALJ’S CONSIDERATION OF PLAINTIFF’S PAIN AND

SUBJECTIVE ALLEGATIONS

Mr. Brown alleges that the ALJ erred in considering Plaintiff’s allegations of pain

and the consistency of his statements. (ECF No. 21:4-12, 14-15, 26:6-7). 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

evaluate a claimant’s subjective allegations, including pain. 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 this second step, the ALJ will examine

the objective medical evidence, the claimant’s statements regarding his 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. The ALJ’s Evaluation of Plaintiff’s Pain/Subjective Allegations

In formulating the RFC, the ALJ stated that he had considered Mr. Brown’s pain

and the consistency of his subjective allegations with other evidence of record. (TR.

24). The ALJ then: (1) set forth the two-step framework under SSR 16-3p, (2)

summarized 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.

As for the claimant’s statements about the intensity, persistence, and

limiting effects of his symptoms, they are inconsistent for a number of

reasons, discussed in greater depth below. Instead, the residual functional

capacity reached herein is consistent with the objective medical evidence,

clinical findings, longitudinal medical history, and observations of the

claimant’s treating and examining providers during this time.

(TR. 25). By means of explanation, the ALJ then discussed, in detail, Plaintiff’s

allegations of pain in his back, knees, and hands. (TR. 25-27). As support for his

findings, the ALJ cited objective evidence, Plaintiff’s allegations, attempts at treatment

including medication and surgical intervention, medical findings on examination,

inconsistencies in the record which undermined Plaintiff’s statements regarding the

intensity of pain, Plaintiff’s daily activities, medical opinions, and statements from a

third-party. (TR. 25-28).

First, the ALJ discussed Mr. Brown’s neck and back pain. In doing so, the ALJ

cited MRIs of Plaintiff’s lumbar spine dated September 28, 2016 and February 12, 2018

which showed mild lower lumbar spondylosis. (TR. 25-26, 509-510, 618-619). The ALJ

also cited an MRI of Plaintiff’s cervical spine from September 28, 2016 which revealed

moderate generalized cervical spondylosis, with bilateral neural foraminal encroachment

at the C3-C4, C5-C6, C6-C7 levels, and mild to moderate central spinal stenosis formed

at the C5-C6 level with mild cord flattening and no evidence of cord signal abnormality.

(TR. 26, 551-512). The ALJ then cited Plaintiff’s treatment for neck and back pain

through pain management, but also noted that “the medical evidence of record does

not reveal the claimant has been recommended more than conservative treatment for

his back and neck pain.” (TR. 26). Indeed, the majority of the records concerning

Plaintiff’s neck and back pain are from pain management physician Dr. Paul Reel, who

treated Plaintiff’s neck and back pain with narcotics. (TR. 443-499, 541-553).

Next, the ALJ discussed Plaintiff’s knee pain. The ALJ began by noting an

October 2017 MRI of Plaintiff’s right knee which showed a complex tear of the medial

meniscus and a November 7, 2017 surgical repair of the right knee. (TR. 26, 621, 643-

644). The ALJ then mentioned a November 20, 2017 follow up appointment where the

surgeon noted that Plaintiff exhibited full range of motion of the right knee and

reported feeling “much better” overall with some “dull achy pain” remaining. (TR. 26,

650). For this pain, the physician declined a refill of Percocet, but ordered Plaintiff to

continue taking Cymbalta, which was noted by the ALJ. (TR. 26, 650). Regarding

Plaintiff’s left knee, the ALJ cited a February 2018 MRI which revealed moderate joint

effusion with a moderate sized Baker’s cyst, osteoarthritis, and a medial meniscus tear.

(TR. 26, 620). As noted by the ALJ, in April 2018 Plaintiff’s surgeon recommended

arthroscopic repair of the left knee, which, at the May 11, 2018 hearing, Plaintiff

confirmed had occurred. (TR. 26, 119). Lastly, the ALJ relied on a lack of medical

restrictions related to Plaintiff’s knees or requirements to wear a brace on either knee.

(TR. 26, 608).

Finally, the ALJ extensively discussed Plaintiff’s hand/finger pain. The ALJ

acknowledged Plaintiff’s testimony that he lacks grip strength and has difficulties with

fine motor manipulation owing to partial digit amputation on his nondominant hand.

(TR. 26-27). Despite the finger amputation, the ALJ noted that Plaintiff had continued

to work. (TR. 27, 301-312). The ALJ also noted that Plaintiff sought treatment for

bilateral hand pain and swelling and noted that x-rays of both hands were negative for

fracture, dislocation, or radiopaque foreign body and were indicative of normal soft

tissues in each hand. (TR. 27, 506, 507). The ALJ cited a progress note from August 10,

2017 which noted range of motion intact in all of Plaintiff’s fingers and no hand joint

nodules or edema present. (TR. 27, 596). The ALJ noted that Plaintiff had been

prescribed Gabapentin to treat the hand pain. (TR. 27, 596). Following this discussion,

the ALJ stated:

[T]he undersigned has considered claimant’s allegations of hand pain,

neuropathy, and the partial amputation of digits on his nondominant

hand, in addition to the medical evidence of record, and has provided for

corresponding limitations, related to grip, finger, and feel, in the residual

functional capacity contained herein.

(TR. 27).

As additional support for his pain/subjective allegations assessment, the ALJ

relied on Plaintiff’s reports of his daily activities and related inconsistencies. The ALJ

noted that Plaintiff had testified that his pain limited his ability to sit, by requiring him to

frequently change positions. (TR. 26). Even so, the ALJ noted that Mr. Brown had

reported driving for approximately 100-150 miles without having to stop and stretch or

change positions. (TR. 26). The ALJ also noted Plaintiff’s ability to care for his personal

needs, prepare light meals, grocery shop, and lift twenty pounds. (TR. 26).

The ALJ also discussed opinion evidence, affording partial weight to State Agency

physicians at the initial and reconsideration levels of disability review, who stated that

Plaintiff maintained the ability to perform light work with additional environmental

restrictions related to Plaintiff’s asthma. (TR. 27). As explanation for the “partial

weight,” the ALJ stated:

[W]hile the undersigned concurs that the claimant maintains the residual

functional capacity to perform light work, the undersigned has found the

claimant to have greater functional limitations than those found below,

based on a review of the medical evidence of record. Specifically, the

claimant received later medical treatment for his bilateral knee

impairments, the first of which did not occur until after reconsideration,

and the undersigned considered this treatment in the residual functional

capacity herein.

(TR. 27).

Finally, the ALJ stated that he had considered the third-party statement and

function report completed by Mr. Brown’s daughter. The ALJ stated that the statements

were given “some weight as to the statements regarding observable activities of daily

living, . . . [but] to the extent her statements relay the claimant’s subjective complaints,

the opinion is given little weight as there is not firsthand knowledge as to the claimant’s

symptoms.” (TR. 28). The ALJ stated: “The reported observations as to the claimant’s

ability to function in his activities of daily living, however, is consistent with the

objective evidence. Therefore, the undersigned has afforded this opinion some weight.”

(TR. 28).

C. The ALJ’s Analysis of Plaintiff’s Pain/Subjective Allegations is

Supported by Substantial Evidence

Mr. Brown presents a multitude of arguments relating to the ALJ’s

pain/consistency analysis. The Court finds them all without merit.

First, Plaintiff argues that the ALJ relied only on objective evidence as a means to

discount Plaintiff’s pain. (ECF No. 21:6). But as discussed, this is simply not true. In

addition to objective evidence, the ALJ cited Plaintiff’s own testimony/allegations of

pain, attempts at treatment including medication and surgical intervention, medical

findings on examination, inconsistencies in the record which undermined Plaintiff’s

statements regarding the intensity of pain, Plaintiff’s daily activities, medical opinions,

and statements from a third-party. (TR. 25-28).

Second, Plaintiff argues that the ALJ “provided exertional limitations that did not

meet the severe level of Mr. Brown’s pain and proven impairments and limitations.”

(ECF No. 21:7). By means of example, Plaintiff challenges the RFC for “light work”

which requires a “good deal” of walking and standing based on his testimony that he

cannot stand a long time and experiences knee buckling. (ECF No. 21:7-8). But the ALJ

weighed the evidence, including Plaintiff’s testimony, and concluded otherwise. The

Court will not re-weigh the evidence to reach a contrary decision. ,

805 F.3d at 1201 (noting that the court will “neither reweigh the evidence nor

substitute [its] judgment for that of the agency.”) (internal quotation marks omitted).

Third, Plaintiff challenges the ALJ’s evaluation of his hand impairment, noting

that the ALJ’s reliance on x-rays “[were] irrelevant when discussing Mr. Brown’s grip

limitations, neuropathy, and arthritis” and Plaintiff’s family “agrees, stating he had

severe hand pain.” (ECF No. 21:8, 9). But, as discussed, in assessing Plaintiff’s hand

impairment, the ALJ also relied on the fact that Mr. Brown had been prescribed

Gabapentin for the hand pain and provided for corresponding limitations in the RFC

related to Plaintiff’s abilities to grip, finger, and feel. TR. 27; 24. And the ALJ

considered evidence from Plaintiff’s daughter, to the extent her statements involved

observable activities of daily living. (TR. 28).

Within this argument, Plaintiff also states: “No medical opinion can be ignored. If

the RFC conflicts with a medical opinion, the ALJ must explain the inconsistency.” (ECF

No. 21:9). But Plaintiff has pointed to no “medical opinion” which conflicts with the RFC

for which the ALJ owed a duty of explanation. 20 C.F.R. §§ 404.1513(a)(2) &

416.913(a)(2) (defining “medical opinions” as statements from a medical source about

what the claimant can do despite impairments and whether the claimant has certain

work-related abilities and/or limitations.). Indeed, Mr. Brown seems to concede the

point, but then argues that because there was no medical opinion regarding Plaintiff’s

hand limitations, the ALJ should have called a medical expert to provide one. (ECF No.

21:9). But the ALJ need only to employ a medical expert where “medical evidence of

onset [date] is ambiguous.” , 466 F.3d 903, 911 (10th Cir. 2006).

Because onset date of Plaintiff’s alleged impairments was not an issue, the ALJ did not

err in failing to call a medical expert to testify regarding Plaintiff’s hands.

Fourth, Plaintiff challenges the ALJ’s reliance on Plaintiff’s daily activities,

contending that the ALJ’s citation to Plaintiff’s ability to prepare meals, and shop for

groceries is “disingenuous[].” (ECF No. 21:15). Although the record also contains

evidence that Plaintiff's daily activities may have been more limited, it is the ALJ’s role,

not the Court’s, to resolve such conflicts in the evidence. , 813 F.3d

1326, 1333 (10th Cir. 2016). While “sporadic performance” of activities, like performing

a few household tasks, “does not establish that a person is capable of engaging in

substantial gainful activity,” , 816 F.2d 508, 516-17 (10th Cir. 1987), the

Tenth Circuit has consistently held that an ALJ may reasonably consider such activities

when they are inconsistent with a claimant’s reported limitations. ,

, 566 F. App’x 691, 694 (10th Cir. 2014) (claimant able to do light yard work, do

light chores, do light cooking, grocery shop, drive, and visit her family);

, 602 F.3d 1136, 1146 (10th Cir. 2010) (claimant could care for herself, her

home, and her children, and also drive, shop, handle finances, garden, visit friends, and

go out to eat). Plaintiff has not established that the ALJ erred in relying upon Plaintiff's

activities in evaluating his subjective complaints.

Fifth, citing to page 354 of the transcript, Plaintiff stated that his pain “affects his

concentration. . . , and his medications make him drowsy.” (ECF No. 21:10). Indeed,

page 354 stated that Plaintiff’s ability to handle money had been affected by his

impairments because he could not concentrate. (TR. 354). But page 354 was part of a

function report completed by Plaintiff’s daughter, not Mr. Brown. TR. 354. On a

similar form completed by Mr. Brown approximately one week earlier, Plaintiff stated

that his ability to handle money had not been affected by his impairments. TR. 338.

Furthermore, the entire function report is silent as to any side effects from medications,

obviating any further related discussion. (TR. 350-357); See , 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.”).

Finally, Plaintiff alleges that the ALJ failed to analyze the sum of all of his pain, in

combination, arguing that had he done so, the ALJ “would have found either Mr. Brown

is only capable of sedentary work, or that he is incapable of working on a regular and

continuing basis.” (ECF No. 21:5). But Plaintiff’s argument is merely another attempt to

reweigh the evidence, which the Court cannot do. .

D. Summary

In sum, the Court finds that substantial evidence supports the ALJ’s evaluation of

Plaintiff's subjective complaints and finds that the correct legal standards were

applied. , 206 F.3d 1368, 1372 (10th Cir. 2000) (“[T]he ALJ did not

simply recite the general factors he considered, he also stated what specific evidence

he relied on in determining that [the claimant’s] allegations of disabling pain were not

credible.”); SSR 16-3p, 2016 WL 119029, at *7 (“[I]f an individual’s statements

about the intensity, persistence, and limiting effects of symptoms are inconsistent with

the objective medical evidence and the other evidence, we will determine that the

individual's symptoms are less likely to reduce his or her capacities to perform work-

related activities . . . .”). The ALJ did not rely only on objective evidence, but also

considered Plaintiff’s testimony and statements related to pain, attempts at treatment

including medication and surgical intervention, medical findings on examination,

inconsistencies in the record which undermined Plaintiff’s statements regarding the

intensity of pain, Plaintiff’s daily activities, medical opinions, and statements from a

third-party. (TR. 25-28). The ALJ articulated sufficient reasoning and relied upon proper

factors in determining that, overall, Plaintiff's symptoms did not prohibit him from

performing work-related activities. Accordingly, the Court affirms the ALJ’s evaluation of

Plaintiff’s pain and the consistency of his subjective allegations.

VI. NO ERROR IN THE ALJ’S CONSIDERATION OF PLAINTIFF’S MENTAL

IMPAIRMENTS

Mr. Brown also argues that the ALJ erred in his analysis of Plaintiff’s mental

impairments at step four based on:

1. The ALJ’s step two finding that Plaintiff suffered from “mild” limitations in

his abilities to understand, remember, and apply information; interact with

others; and concentrate, persist, and maintain pace; and

2. Findings from consultative examining psychologist, Dr. Jennifer Lancaster.

(ECF Nos. 21:12-13; 26:8-10). The Court finds no error.

First, in , 727 F.3d 1061, 1065 (10th Cir. 2013), the Tenth Circuit

Court of Appeals specifically stated: “in assessing the claimant’s RFC, the ALJ must

consider the combined effect of all of the claimant's medically determinable

impairments, and “the Commissioner’s procedures do not

permit the ALJ to simply rely on his finding of non-severity as a substitute for a

proper RFC analysis.” (emphasis in original). Here, Plaintiff alleges a violation of ,

arguing that in formulating the RFC, the ALJ failed to consider Plaintiff’s “mild

limitations” which the ALJ had found at step two regarding Mr. Brown’s abilities to

understand, remember, and apply information; interact with others; and concentrate,

persist, and maintain pace. (ECF Nos. 21:12-13; 26:8-10). Although does state

that findings of “mild” limitations at step two require further analysis at step four,4 the

Court concludes that the ALJ’s step four analysis was sufficient.

In formulating the RFC, the ALJ afforded “great weight” to findings from State

Agency psychologists, Drs. Joan Holloway and Carol Mahoney, both of whom concluded

that Plaintiff’s mental functioning was only “mildly” impaired. (TR. 28, 139, 165). The

ALJ also afforded “great weight” to an opinion from the consultative examiner, Dr.

Lancaster, who concluded that Plaintiff’s anxiety and depression-related symptoms were

only “mild” in nature. (TR. 28, 502). Based on these findings, the ALJ did not

incorporate any limitations in the RFC related to Plaintiff’s mental health. TR. 24. In

, the Court held that the ALJ could not “simply rely on his finding of non-severity

as a substitute for a proper RFC analysis.” , 727 F.3d at 1065. But in the

instant case, the ALJ did no such thing. Instead of relying solely on his step two

findings, the ALJ discussed, in detail, findings from three psychologists, in formulating

his RFC at step four. Thus, the Court finds no error with respect to Plaintiff’s first point

of error.

Next, Mr. Brown argues that the ALJ erred in his consideration of the opinion

from Dr. Lancaster. (ECF No. 21:13). The Court disagrees.

As part of her examination of Plaintiff, Dr. Lancaster had Plaintiff complete the

“Montreal Cognitive Assessment” test (MoCA), on which he scored a 25, one point

below “normal” range. (TR. 501, 503). Ultimately, Dr. Lancaster made the following

findings:

4 , 727 F.3d at 1065, n.3.

Mr. Brown endorsed several symptoms related to anxiety and depression,

both of which seem mild in nature and are thought to be exacerbated by

recent stressors and reported changes in physical ability. His mental

health concerns are not thought to be what has interfered with work

functioning or work obtainment. Any efforts towards employment would

likely need to accommodate the presence of any potential physical

limitations. He is likely of low average intelligence, although intellectual

testing would be needed to more accurately assess cognitive abilities.

Mr. Brown is thought to be able to manage his own funds responsibly. He

is thought to be capable of understanding, remembering, and social

interacting and adapting, although he may have some difficulty with

persisting when frustrated.

Related to mental health concerns, Mr. Brown’s prognosis is good,

especially if he were to receive psychotherapeutic treatment in an effort to

help him more effectively manage his emotional concerns and recent

stressors.

(TR. 502).

According to Plaintiff, the ALJ: (1) failed to incorporate Dr. Lancaster’s

“persistence” limitation in the RFC and (2) improperly ignored his MoCA score which

demonstrated Plaintiff suffered from a cognitive impairment. (ECF No. 21:13). The

Court rejects Plaintiff’s arguments.

First, Dr. Lancaster stated that Mr. Brown “may” have difficulty persisting “if”

he gets frustrated. (TR. 502). Dr. Lancaster’s speculation on a potential difficulty under

unknown circumstances is not definitive enough to warrant inclusion in the RFC. The

ALJ did not err by failing to include a “persistence” limitation in the RFC.

Second, Dr. Lancaster offered no opinion related to Plaintiff’s cognitive abilities

based on the MoCA exam, but instead stated that “intellectual testing would be needed

to more accurately assess cognitive abilities.” (TR. 502). Contrary to Plaintiff’s

allegations, the ALJ acknowledged the MoCA score, TR. 21-22, but ultimately

concluded that it supported only “mild” limitations, not warranting any corresponding

limitations in the RFC. (TR. 22). See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.

2000) (No error by ALJ failing to include limitations which were belied by the medical

record). The ALJ did not err by “ignoring” the MoCA results and remand is not

warranted based on the ALJ's evaluation of Plaintiff's mental impairments.

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 10, 2021.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

17