# Brown v. Commissioner of the Social Security Administration

> District Court, W.D. Oklahoma · September 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10389217

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389217

## How later opinions describe it (automated extraction)

- noting that “it isn’t [the Court’s] obligation to search the record and construct a party’s arguments.”
- noting that the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389217. Public record. Not legal advice.