Allen v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

LORENZO ALLEN, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-138-AMG

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Lorenzo Allen (“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 (“SSA”) denying his application for disability insurance benefits (“DIB”)

under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. (Doc. 1). The Commissioner

has answered the Complaint and filed the Administrative Record (“AR”) (Docs. 14, 15),

and the parties have fully briefed the issues (Docs. 22, 35, 36).1 The parties have consented

to proceed before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).

(Docs. 11, 12). Based on the Court’s review of the record and issues presented, the Court

AFFIRMS the Commissioner’s decision.

1 Citations to the parties’ briefs refer to the Court’s CM/ECF pagination. Citations to the

Administrative Record refer to its original pagination.

I. Procedural History

Plaintiff filed an application for DIB on August 18, 2020, alleging a disability onset

date of November 16, 2016. (AR, at 236-37). The SSA denied the application initially and

on reconsideration. (Id. at 85-97, 98, 100, 102-23). An administrative hearing was held on

August 3, 2021. (Id. at 41-64). Afterwards, the Administrative Law Judge (“ALJ”) issued

a decision finding that Plaintiff was not disabled. (Id. at 12-36). The Appeals Council

subsequently denied Plaintiff’s request for review. (Id. at 1-4). Thus, the ALJ’s decision

became the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048, 1051 (10th

Cir. 2009); 20 C.F.R. § 404.981.

II. Administrative Decision

At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful

activity since November 16, 2016, the alleged onset date. (AR, at 17). At Step Two, the

ALJ found that Plaintiff had the following severe impairments: traumatic brain injury, post-

concussive headache disorder, degenerative disc disease of the cervical spine and the

lumbar spine, right shoulder impingement syndrome, morbid obesity, major depressive

disorder, generalized anxiety disorder, and posttraumatic stress disorder. (Id. at 18).

At Step Three, the ALJ found that Plaintiff had no impairment or combination of

impairments that met or medically equaled the severity of one of the listed impairments.

(Id. at 19). The ALJ then determined that Plaintiff had the RFC

to perform light work as defined by 20 CFR 404.1567(b) except the claimant

(1) can occasionally climb stairs and ramps; (2) can never climb ladders or

scaffolds; (3) can occasionally balance, stoop, kneel, crouch and craw[l]; (4)

can occasionally reach overhead and frequently reach in all other directions

with the upper dominant extremity; (5) has no limitations with the non-

dominant upper extremity; (6) must avoid concentrated exposure to hazards

such as unprotected heights and moving mechanical parts; and (7) cannot

work in loud environments as defined by the Dictionary of Occupational

Title[s]. Further, the claimant (1) can understand, remember and carry out

simple instructions; (2) can have occasional interaction with supervisors,

coworkers and the public; (3) can only make simple, work-related decisions;

(4) can only tolerate occasional change in work location; and (5) cannot work

at a strict production rate such as the rate required to work on an assembly

line.

(Id. at 21-22). Then, at Step Four, the ALJ found that Plaintiff could not perform his past

relevant work. (Id. at 34). At Step Five, the ALJ determined that when “[c]onsidering the

claimant’s age, education, work experience, and [RFC],” there are jobs that exist in

significant numbers in the national economy that the claimant can perform, such as a

collator operator or marker. (Id. at 34-35). Thus, the ALJ found Plaintiff had not been under

a disability from November 16, 2016 through the date of the decision. (Id. at 35).

III. Claims Presented for Judicial Review

While Plaintiff’s arguments are repetitive and somewhat difficult to discern, on

appeal, he raises four points of error. First, Plaintiff contends the ALJ erred at Step Two of

the sequential evaluation process by “failing to incorporate evidence showing disabling

conditions.” (Doc. 22, at 6; Doc. 36, at 4). Second, Plaintiff asserts the ALJ erred in her

evaluation of Plaintiff’s headache disorder and specifically, whether it was medically

equivalent to listing 11.02. (Doc. 22, at 8-9). Third, Plaintiff argues the ALJ failed to

properly evaluate Plaintiff’s subjective reports of symptoms resulting from each of his

medically determinable impairments. (Doc. 22, at 6-14; Doc. 36, at 8-9). Fourth, Plaintiff

contends the ALJ failed to incorporate the appropriate limitations in the hypotheticals she

presented to the vocational expert (“VE”) during the administrative hearing. (Doc. 22, at

13-14).

In response, the Commissioner argues that the ALJ conducted a proper analysis at

Step Two. (Doc. 35, at 14-16). The Commissioner further contends the ALJ followed the

proper SSA guidelines in evaluating Plaintiff’s headache disorder. (Id. at 16-17). The

Commissioner also asserts the ALJ reasonably accounted for Plaintiff’s impairments and

subjective reports by limiting him to less than a full range of light work with postural and

mental limitations. (Id. at 17-18, 19-26). Finally, the Commissioner explains that the ALJ’s

Step Five findings were supported by substantial evidence. (Id. at 27).

IV. The Disability Standard and Standard of Review

The Social Security Act defines “disability” as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A

physical or mental impairment is an impairment “that results from anatomical,

physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A

medically determinable impairment must be established by “objective medical evidence”

from an “acceptable medical source,” such as a licensed physician or a licensed and

certified psychologist; whereas the claimant’s own “statement of symptoms, a diagnosis,

or a medical opinion” is not sufficient to establish the existence of an impairment. 20 C.F.R.

§ 404.1521; see 20 C.F.R. § 404.1502(a), 404.1513(a). A plaintiff is disabled under the

Social Security Act “only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work which

exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

Social Security regulations implement a five-step sequential process to evaluate a

disability claim. 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.

1988) (explaining five steps and burden-shifting process). To determine whether a claimant

is disabled, the Commissioner inquires: (1) whether the claimant is engaged in any

substantial gainful activity; (2) whether the claimant suffers from a severe impairment or

combination of impairments; (3) whether the impairment meets an impairment listed in

Appendix 1 of the relevant regulation; (4) considering the Commissioner's assessment of

the claimant's residual functional capacity (“RFC”),2 whether the impairment prevents the

claimant from continuing claimant’s past relevant work; and (5) considering assessment of

the RFC and other factors, whether the claimant can perform other types of work existing

in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v). Plaintiff

bears the “burden of establishing a prima facie case of disability under steps one, two, and

four” of the SSA’s five-step procedure. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th

Cir. 2005). If the plaintiff makes this prima facie showing, “the burden shifts to the

Commissioner to show the claimant has the [RFC] to perform other work in the national

economy in view of [claimant’s] age, education, and work experience.” Id. “The claimant

2 RFC is “the most [a claimant] can still do despite [a claimant’s] limitations.” 20 C.F.R. §

404.1545(a).

is entitled to disability benefits only if he is not able to perform other work.” Bowen v.

Yuckert, 482 U.S. 137, 142 (1987).

This Court’s review of the Commissioner’s final decision is limited “to determining

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

factual findings are supported by substantial evidence.” Noreja v. Comm’r, SSA, 952 F.3d.

1172, 1177 (10th Cir. 2020) (citation omitted). Substantial evidence is “more than a

scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

2007). “It means – and means only – such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, __ U.S. __, 139 S.Ct.

1148, 1154 (2019) (quotations and citation omitted). A court’s review is based on the

administrative record, and a court must “meticulously examine the record as a whole,

including anything that may undercut or detract from the ALJ’s findings in order to

determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262

(10th Cir. 2005). 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.” Vigil v. Colvin,

805 F.3d 1199, 1201 (10th Cir. 2015) (quotations omitted). Even if a court might have

reached a different conclusion, the Commissioner’s decision stands if it is supported by

substantial evidence. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

V. The ALJ’s Step Two Analysis Was Proper.

Plaintiff challenges the ALJ’s Step Two finding that his sleep apnea and lumbar

degenerative disc disorder were not severe physical impairments. (Doc. 22, at 7, 11-12).

At Step Two, the issue before the ALJ is whether the plaintiff suffers from at least one

“severe” medically determinable impairment. Dray v. Astrue, 353 F. App’x 147, 149 (10th

Cir. 2009). “[S]tep two is designed ‘to weed out at an early stage of the administrative

process those individuals who cannot possibly meet the statutory definition of disability.’”

Id. (quoting Bowen, 482 U.S. at 156 (O’Connor, J., concurring)). In circumstances where

an ALJ deems at least one impairment severe, and proceeds to the remaining steps of the

evaluation, any error at step two in failing to deem a certain impairment severe is

considered harmless. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)

(stating that “any error [at Step Two] became harmless when the ALJ reached the proper

conclusion that [the plaintiff] could not be denied benefits conclusively at step two and

proceeded to the next step of the evaluation sequence.”). Here, the ALJ found multiple

severe impairments and proceeded through the remaining steps of the sequential

evaluation. Thus, Plaintiff sustained his burden of proof at Step Two by demonstrating the

existence of a medically determinable severe impairment, and the ALJ did not err in failing

to identify other impairments as “severe.”

VI. The ALJ’s Step Three Consideration of Plaintiff’s Headache Disorder is Not a

Basis for Reversal.

Plaintiff asserts that the ALJ did not properly consider whether his headache

disorder was medically equivalent to the SSA listing for non-convulsive epilepsy. (Doc.

22, at 8-9). At Step Three of the sequential evaluation process, the ALJ must determine

whether the plaintiff’s alleged impairments, singly or in combination, meet or medically

equal one of the impairments set forth in the Commissioner’s Listing of Impairments (“the

listings”). 20 C.F.R. Pt. 404, Subpt. P, App. 1. The listings describe certain impairments

the Commissioner considers disabling. 20 C.F.R. § 404.1525(a); 20 C.F.R. Pt. 404, Subpt.

P, App. 1. If a plaintiff’s condition meets or medically equals the severity of a listed

impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at

751; see Bowen, 482 U.S. at 141 (noting that if the plaintiff’s impairment “meets or equals

one of the listed impairments, the claimant is conclusively presumed to be disabled”).

Social Security Ruling (“SSR”) 19-4p details how an ALJ should consider primary

headache disorders during Step Three. SSR 19-4, 2019 WL 4169635. Because a listing for

migraine headaches does not exist under the regulations, the ALJ is required to compare

the findings to “closely analogous listed impairments.” 20 C.F.R. § 404.1526(b)(2). SSR

19-4p provides, “While uncommon, a person with a primary headache disorder may exhibit

equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for

[epilepsy]), and we may find that his or her [medically determinable impairments]

medically equals the listing.” SSR 19-4p, 2019 WL 4169635, at *7.3

In their briefing before this Court, each party presented opposing arguments as to

whether the ALJ complied with SSR 19-4p at Step Three. However, because Plaintiff

3 In his Opening Brief, Plaintiff references equaling the listing for non-convulsive epilepsy,

seemingly arguing it is the closest analogous listing to a headache disorder. (Doc. 22, at 9).

Prior to September 29, 2016, listing 11.03 covered non-convulsive epilepsy and listing

11.02 covered conclusive epilepsy. Effective September 29, 2016, the SSA combined these

two “epilepsy” listings into one under listing 11.02, thus removing listing 11.03. See

Revised Medical Criteria for Evaluating Neurological Disorders, 81 FR 43048–01, 2016

WL 3551949, at *43056.

suffers from a secondary, rather than a primary, headache disorder, SSR 19-4p does not

apply to Plaintiff’s impairment.

In T.B.M. v. Kijakazi, 2023 WL 2587285 (D. Kan. March 21, 2023), the court

recently explained the application of SSR 19-4p to primary as opposed to secondary

headache disorders.

SSR 19-4p “provides guidance on how [the Social Security Administration]

establish[es] that a person has a medically determinable impairment (MDI)

of a primary headache disorder and how [the Social Security Administration]

evaluate[s] primary headache disorders in disability claims under titles II and

XVI of the Social Security Act[.]” SSR 19-4p, 2019 WL 4169635, at *1

(S.S.A. Aug. 26, 2019). The Ruling explains that examples of a primary

headache disorder “include migraines, tension-type headaches, and

trigeminal autonomic cephalalgias.” Id. at *3. As SSR 19-4p recognizes,

“[p]rimary headache disorder is not a listed impairment in the Listing of

Impairments[.]” Id. at *7. But “a primary headache disorder, alone or in

combination with another impairment(s)” may “medically equal[ ] a listing”

if “a person with a primary headache disorder ... exhibit[s] equivalent signs

and limitations to those detailed in listing 11.02” for epilepsy (dyscognitive

seizures). Id. . . . .

The Ruling also provides that “only a primary headache disorder”

qualifies “as an MDI.” Id. at *5. The Social Security Administration

“will not establish secondary headaches (for example, headache

attributed to trauma or injury to the head or neck or to infection) as

MDIs because secondary headaches are symptoms of another

underlying medical condition[,]” and instead, it “evaluate[s] the

underlying medical condition as the MDI.” Id.

Id. at *3-4 (emphasis added).

In the present case, the record is clear that Plaintiff suffers from a secondary, rather

than a primary, headache disorder. In November 2016, Plaintiff began suffering from neck,

back, and head pain following a workplace incident involving stacking bags of concrete.

(AR, at 353). The medical record from that date specifically noted that prior to the incident,

Plaintiff had no medical history of these symptoms. (Id.)

On November 22, 2016, Plaintiff was seen at a follow up appointment. (Id. at 706).

The examination notes indicate Plaintiff suffered from “headaches post concussion” and

Plaintiff specifically reported, “Prior to this incident he did not have any headaches hardly

at all.” (Id.) In June 2017, Plaintiff underwent an independent medical examination related

to a worker’s compensation proceeding. (Id. at 490). During the examination, Plaintiff

reported that “he never had any difficulty with headaches until the day of the accident.”

(Id.). Plaintiff made similar reports during various examinations since that time. (Id. at 369-

70, 436-37, 442, 668, 859). On February 21, 2018, Dr. Gabriel Pitman recorded that

Plaintiff had previously experienced a traumatic brain injury and developed post-

concussive headaches. (Id. at 665). Other physicians also referenced Plaintiff’s headaches

as post-concussive. (Id. at 441, 473, 480, 705, 859).

Plaintiff’s headache disorder is clearly secondary to his traumatic brain injury

suffered in November 2016. SSR 19-4p specifically defines secondary headache disorders

as those “attributed to trauma or injury to the head or neck or to infection.” SSR 19-4p,

2019 WL 4169635, at *5. Accordingly, the SSA does not consider Plaintiff’s headache

disorder, standing alone, a medically determinable impairment and thus, the ALJ was not

required to determine medical equivalency under SSR 19-4p. Id. at *2, 5. See also

Gutierrez v. Kijakazi, 2023 WL 2614456, at *5-6 (D.N.M. March 23, 2023) (explaining

that under SSR 19-4p, the ALJ is only required to consider a secondary headache disorder

in Step Three when determining the RFC and not in determining whether the plaintiff meets

or equals a listing); Melissa H. v. Kijakazi, 2022 WL 4381158, at *2-3 (D. Utah Sept. 22,

2022) (affirming decision where the ALJ considered the plaintiff’s secondary headache

disorder stemming from vehicular accident at Step Three in determining RFC but did not

apply SSR 19-4p).4 Because SSR 19-4p does not apply to Plaintiff’s headache disorder,

this assertion of error is without merit.

VII. The ALJ’s Evaluation of Plaintiff’s Subjective Reports Is Supported by

Substantial Evidence.

Throughout Plaintiff’s Opening Brief, he asserts that the ALJ erred in her

consideration of his subjective reports of pain and limitations. As established below, the

ALJ’s decision negates this assertion in that she thoroughly examined Plaintiff’s subjective

reporting of her symptoms and limitations.

This Court’s review of the ALJ’s consideration of Plaintiff’s subjective reports is

guided by two principles. First, such “determinations are peculiarly the province of the

finder of fact, and [the court] will not upset such determinations when supported by

substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Second,

“findings as to [subjective reports] should be closely and affirmatively linked to substantial

evidence and not just a conclusion in the guise of findings.” Id. (additional alteration

omitted).

4 Plaintiff does not raise an issue on appeal regarding whether his traumatic brain injury

meets either listing 11.18 (Traumatic Brain Injury) or listing 12.02 (Neurocognitive

Disorders, Traumatic Brain Injury). 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A-2, §§ 11.02,

12.02.

Following a thorough discussion of the medical evidence of record (AR, at 22-33),

the ALJ set out her findings regarding Plaintiff’s subjective reports and then determined

the RFC relating to each of his impairments. (Id. at 33-34). The ALJ began with the general

statement, “[t]he claimant’s statements and allegations about the intensity, persistence, and

limiting effects of his symptoms and impairments are not consistent with the evidence of

record.” (Id. at 33). More specifically, the ALJ explained, “As summarized above, the

evidence of record shows an extensive treatment history since the claimant’s November

2016 injury (Exhibit 1F, 2F, 4F-7F, 9F-11F, 18F). I have not summarized every single

treatment encounter in the record and have focused on the more salient encounters.” (AR,

at 33). The ALJ then discussed Plaintiff’s specific impairments and resulting limitations.

Because Plaintiff challenges the ALJ’s evaluation of his subjective symptoms arising from

each of his impairments, the Court has addressed each impairment individually below.

A. Sleep Apnea & Hypothyroidism

Plaintiff contends the ALJ ignored his non-severe impairments of sleep apnea and

hypothyroidism in determining the RFC. Specifically, Plaintiff states, “The ALJ [] failed

to determine Claimant’s severe sleep apnea as non-severe in spite of the medical record

and failed entirely to discuss symptoms from Claimant’s [] sleep apnea causing fatigue;

the ALJ only noted Claimant’s sleep apnea three times without analysis on the impacts on

Claimant’s functioning [].” (Doc. 22, at 7). This assertion is simply inaccurate. At Step

Two in her decision, the ALJ explained:

Although not alleged as an impairment, the evidence of record shows a

historical diagnosis of obstructive sleep apnea. The medical evidence of

record shows this was diagnosed at some point in the past but it is not clear

as to when [(AR, at 682)]. In July 2020, the claimant was referred for a repeat

sleep study [(AR, at 395, 688)]. In February 2021, the claimant reported he

never completed the sleep study [(AR, at 898, 901, 919)]. While the evidence

of record indicates that the claimant may have obstructive sleep apnea, its

severity and contribution to other impairments during the relevant time

period remains unclear from the record. In short, the evidence of record does

not show that this impairment causes more than minimal vocationally

relevant limitations. Thus, I find that it is nonsevere.

(AR, at 18).

Similarly, Plaintiff states that the ALJ minimized or ignored Plaintiff’s hypothyroid

symptoms. (Doc. 22, at 9). On the contrary, in her decision, the ALJ explained:

Although not alleged as an impairment, the evidence of record shows a

diagnosis of low thyroid levels. In January 2016, testing showed low TSH

[(AR, at 748)]. In February 2016, a thyroid scan was unremarkable [(AR, at

421, 734-35)]. That month, the claimant was seen by endocrinology and

diagnosed with subclinical hyperthyroidism [(AR, at 716-17)]. In March

2021, laboratory testing showed TSH levels within normal limits (AR, at

941)]. In short, the evidence of record does not show that this impairment

causes more than minimal vocationally relevant limitations. Thus, I find that

it is nonsevere.

(AR, at 18).

The ALJ clearly discussed Plaintiff’s sleep apnea and hypothyroidism, set forth an

accurate summary of the medical record pertaining to each, and linked her findings that

they do not cause more than minimal limitations to specific findings in the record. See

Smith v. Colvin, No. CIV-13-617-F, 2014 WL 4384705, at *2 (W.D. Okla. Sept. 3, 2014)

(“[A] finding at step two that a medically determinable impairment poses no restrictions

on a claimant’s work activities obviates the need for further analysis at step four.”). The

ALJ properly performed his analysis of these impairments.

B. Shoulder and Back Impairments

Plaintiff next challenges the ALJ’s evaluation of his reported symptoms arising from

lumbar and cervical spine degenerative disc disease and right shoulder impingement

syndrome. With regard to these impairments, the ALJ explained:

Other than for the right shoulder surgery, the claimant has generally received

conservative treatment for his complaints. Treatment over the past five years

has consisted of medication management, physical therapy and various

injections (Exhibit 1F, 2F, 4F-7F, 9F-11F, 18F). In terms of the claimant’s

musculoskeletal impairments, the orthopedic and pain management records

reflect persistent complaints of pain despite treatment (id.). However, the

pain management records consistently state the claimant’s pain symptoms

are stable [(AR, at 778, 781, 784, 786, 789, 793, 796, 802, 811, 817, 824,

826, 838, 841)]. The physical examinations have varied of the relevant time

period, but have consistently shown abnormalities such as paraspinal

tenderness and tension, reduced range of motion of the neck and trunk due

to pain and guarding and reduced range of motion of the right shoulder but

have also consistently shown intact gross muscle strength, normal sensation

and intact gait [(AR, at 491-92, 532, 586-87, 604, 622-23, 664, 669, 694-95,

708, 790, 833, 860-61, 877, 945-46, 948-49)]. The claimant’s morbid obesity

may contribute to his musculoskeletal impairments and pain symptoms. . . .

The residual functional capacity outlined above incorporates the

consideration of factors that would potentially aggravate the claimant’s

existing conditions and/or associated functional loss as well as potential side

effects of treatment, and incorporates precautionary limitations due to these

conditions. In regard to the claimant’s musculoskeletal conditions, the

exertional and positional limitations incorporates the consideration that any

further increase in weight and/or more frequent positional exposure would

potentially cause further joint degeneration and subsequent pain and

dysfunction. For the reasons stated, I find the claimant has the ability to

perform the residual functional capacity outlined above.

(AR, at 33-34). While the ALJ merely summarized the records in this portion of the

decision, she had already discussed these records in great detail. (Id. at 23-20). See, cf.,

Endriss v. Astrue, 506 F. App’x 772, 775 (10th Cir. 2012) (“[T]he ALJ cited to a number

of exhibits in the record,” and though she “did not provide a contemporaneous discussion

of those records,” the ALJ had made observations about the evidence in those exhibits “just

a few pages earlier.”).

Plaintiff asserts general arguments that the RFC limitations are not sufficient

because various medical providers documented Plaintiff’s descriptions of pain and

observed direct physical evidence of the same. (Doc. 22, at 10). In her review of the medical

record as a whole, however, the ALJ discussed those descriptions and observations, as well

as the examination notes that showed improved reports and findings. (AR, at 23-24, 25,

26-28, 29-30, 31).

Plaintiff also asserts the ALJ cherry-picked Plaintiff’s reports of daily activities in

order to find him capable of work, such as Plaintiff’s ability to drive a car, shop, and handle

household finances. (Doc. 22, at 13). However, the ALJ considered all of Plaintiff’s

reported daily activities, not just those noted by Plaintiff in his Opening Brief. (AR, at 20-

21, 22-23). She specifically tied her findings that Plaintiff’s subjective reports of daily

activities were not consistent with the record to examinations that frequently showed

muscle strength, normal gait and reflexes, and only some decreased range of motion. (Id.

at 22-30).

Plaintiff also complains that the ALJ considered Plaintiff’s ability to attend his

daughter’s graduation party at Universal Studios in Orlando, Florida, but did not consider

that he had to use a scooter during the trip. (Doc. 22, at 7). A review of the ALJ’s decision

reveals that she discussed Plaintiff’s trip to Universal Studios primarily with regard to his

report that he had difficulty being around crowds due to anxiety. (AR, at 20, 28).

Finally, in order to successfully challenge an RFC determination, a plaintiff must

articulate a specific limitation he experienced from his physical impairments, severe or

otherwise, that the ALJ erroneously failed to include in the RFC. See McAnally v. Astrue,

241 F. App’x 515, 518 (10th Cir. 2007) (“[W]e agree with the magistrate judge that, with

regard to her hypertension, loss of vision or skin problems, the claimant has shown no error

by the ALJ because she does not identify any functional limitations that should have been

included in the RFC assessment or discuss any evidence that would support the inclusion

of any limitations.”) (quotations and alterations omitted); Denman v. Saul, No. CIV-18-

640-G, 2019 WL 4059185, at *4 (W.D. Okla. Aug. 28, 2019) (affirming the ALJ’s RFC

where the plaintiff “fail[ed] to identify the specific limitations he believes were . . .

[erroneously] omitted from the RFC”); Morgan v. Berryhill, No. CIV-17-413-BMJ, 2018

WL 652335, at *6 (W.D. Okla. Jan. 31, 2018) (affirming the Commissioner’s decision

where the plaintiff failed to identify “any additional functional limitations that the ALJ

should have included” in the RFC). Though not a model of clarity, Plaintiff appears to

assert that the ALJ should have included a limitation precluding all overhead and extension

movement in both upper extremities. (Doc. 22, at 13). However, as noted by the ALJ,

Plaintiff only testified that he could not raise his right hand above his head. (AR, at 22).

Plaintiff does not cite to any portion of the record indicating a complete inability to reach

overhead by either arm.

Overall, Plaintiff simply disagrees with the conclusions drawn by the ALJ, and his

disagreement is centered on arguments that would impermissibly require this Court to

reweigh the evidence. See White, 287 F.3d at 909 (recognizing that much of the medical

evidence was in conflict but the ALJ weighed all the evidence in reaching his decision and

the court could not “now reweigh that evidence and substitute [its] judgment for his”). See

also Fannin v. Comm’r, SSA, 857 F. App’x 445, 448 (10th Cir. 2021) (noting that

reweighing the evidence “exceeds the scope of substantial-evidence review”); Alarid v.

Colvin, 590 F. App’x 789, 795 (10th Cir. 2014) (“In citing what he contends is contrary

evidence [to the ALJ’s conclusion regarding the severity of the claimant’s impairments]

Mr. Alarid is asking us to reweigh the evidence, which we cannot do.”).

C. Headache Disorder

Plaintiff also argues that the ALJ erred in her consideration of his headaches by not

incorporating further limitations into the RFC. Following a detailed discussion of

Plaintiff’s headache related medical history, the ALJ stated:

In terms of the claimant’s headaches, the neurological workup shows

negative imaging of the brain, a negative EEG and no neurological deficits

on the examinations (Exhibits 1F, 2F, 5F, 9F, 10F, 18F). The claimant has

repeatedly reported improvement in his symptoms with medications, such as

Amerge (id.). As stated in SSR 19-4p, headaches are complex neurological

disorders involving recurring pain in the head, scalp or neck. Since pain can

be subjective, headaches also can be subjective and difficult to objectively

assess. The evidence of record shows that very early on in the claimant’s

treatment that it was opined his headaches could be related to muscle tension,

rebound headaches, poor sleep, stress and blood pressure [(AR, at 695, 698)].

Later records, note concerns of polypharmacy and a psychological overlay

[(AR, at 790, 799, 820, 827, 832-34)]. In short, the claimant’s headaches

symptoms are complex and may be impacted by multiple other issues.

(AR, at 33).

Plaintiff first asserts the ALJ should have ordered a consultative examination if she

“felt there was not enough evidence to support Claimant’s position that his headaches were

disabling . . . .” (Doc. 22, at 11). This statement misunderstands each party’s burden in

these proceedings. “[T]he burden to prove disability in a social security case is on the

claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). An ALJ does “bear[]

responsibility for ensuring that an adequate record is developed during the disability

hearing consistent with the issues raised.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th

Cir. 2004) (quotations omitted). While this responsibility may require the ALJ to order a

consultative examination, see Hawkins, 113 F.3d at 1166, she is given broad latitude in her

determination of whether to do so. Id. at 1169. Such examinations may be required “where

there is a direct conflict in the medical evidence;” “where the medical evidence in the

record is inconclusive;” or “where additional tests are required to explain a diagnosis

already contained in the record.” Id. at 1166; see also 20 C.F.R. § 404.1519a(b) (describing

when a consultative examination may be appropriate). Here, Plaintiff wholly fails to

identify conflicting or inconclusive medical evidence in relation to his headaches.

Plaintiff also criticizes the ALJ’s reference to neurological testing that showed

“negative imaging of the brain, a negative EEG and no neurological deficits on the

examinations.” (Doc. 22, at 9). Had the ALJ relied on objective medical testing alone in

determining Plaintiff’s RFC, this could be a basis for reversible error. However, the ALJ

discussed Plaintiff’s reports and examinations in great detail.

Plaintiff also asserts the ALJ did not discuss that physicians consistently prescribed

him medications for pain, including narcotics. (Id. at 12). The ALJ’s decision is replete

with discussion of Plaintiff’s medications and their effectiveness, as well as physician

concerns regarding the quantity of Plaintiff’s narcotic medications.

The ALJ noted that in December 2016, Dr. Andrea Fraley recommending weaning

Plaintiff off of Norco due to concerns regarding rebound headaches, and she prescribed

Gabapentin, Cyclobenzaprine, and Prednisolone. (AR, at 24). In February 2018, Dr. Pitman

prescribed Imitrex, Phenergan, Amitriptyline, and Meloxicam for headaches and nausea.

(Id. at 26). The following month, Plaintiff reported that his headaches persisted in spite of

his use of Imitrex, but that Amitriptyline was helpful. (Id.) He also reported that he never

filled his Phenergan prescription. (Id.) Dr. Pitman continued the same medications. (Id.)

Later that month, Plaintiff visited Dr. Jason Leinen for pain management and

reported that Zanaflex, Meloxicam, and Norco were helpful. (Id.) Dr. Leinen agreed to take

over Plaintiff’s pain management and prescribed those three medications. (Id. at 27). The

ALJ noted that Plaintiff returned for monthly follow-up appointments over the next year.

(Id.)

In May 2018, Plaintiff returned to Dr. Pitman and reported that Hydrocodone was

helpful for pain. (Id.) Dr. Pitman discontinued Plaintiff’s prescription for Imitrex and

started him on Amerge. (Id.) The following month, Plaintiff reported that his headaches

had improved and at worst, were 5 out of 10 on the pain scale. (Id.) In August 2018, Dr.

Pitman continued Plaintiff’s previous medications and added Trazadone. (Id.)

In January 2019, Plaintiff reported to Dr. Pitman that he was only experiencing

slight headaches that waxed and waned. (Id. at 28). He also reported sleeping better with

Trazadone. (Id.) Dr. Pitman continued Plaintiff’s prescriptions for Trazadone, BuSpar,

Paxil, Phenergan, and Amerge. (Id.)

In February 2019, Plaintiff visited Dr. Leinen who noted having received

“correspondence about the claimant’s medication usage given that he is taking multiple

substances that could perhaps have a sedating or neurocognitive impact.” (Id.) (quotations

omitted). Plaintiff reported that his medications were “working fairly well at controlling

his pain.” (Id.) Dr. Leinen recorded “concerns [] about polypharmacy and multiple

medication usage in general” and recommended Plaintiff wean down some of his

medications. (Id. at 28-29). Dr. Leinen nevertheless continued Plaintiff’s prescriptions for

Meloxicam, Percocet, and Zanaflex. (Id. at 29).

Also in February 2019, Plaintiff reported that his headaches had returned during the

latter half of the month. (Id. at 28). Plaintiff described their pain level as 3 to 5 out of 10.

(Id.) Dr. Pitman prescribed Seroquel and Hydroxyzine, and provided a Toradol injection.

(Id.) In April 2019, Plaintiff reported the medications were helpful and did not report any

side effects. (Id.) Dr. Pitman continued his medications and added Amantadine. (Id.) The

ALJ noted that Plaintiff refilled his prescriptions for the following four months. (Id.)

In May 2019, Dr. Leinen recommended weaning Plaintiff from his pain

medications, but Plaintiff requested increases in September, October, and November 2019.

(Id. at 29). Dr. Leinen wrote that Plaintiff “tends to exaggerate his symptoms a bit” and

“certainly has some underlying psychological pathology playing a role in his clinical

picture.” (Id.) In December 2019 and March 2020, Dr. Leinen recorded similar concerns,

including that there was “a lot of psychological overlay playing a significant role with

management of his pains.” (Id.)

In April 2020, Plaintiff reported to Dr. Pitman that his headaches worsened with a

reduction of Amantadine and a “worsening temper over neighbor and pharmacist.” (Id.)

Dr. Pitman continued Plaintiff’s prescriptions for Seroquel, Hydroxyzine, Trazadone,

BuSpar, Paxil, and Amerge. (Id.) The following month, Plaintiff reported medications were

helpful and he was not experiencing side effects. (Id.) In September 2020, Plaintiff

reported to Dr. Leinen that his medications were working well but he did have some

breakthrough pain with weather changes or increased exertion. (Id.) Dr. Leinen continued

Plaintiff’s prescriptions for Zanaflex and Percocet, and Plaintiff followed up for refills in

November 2020 and January 2021. (Id. at 30).

In December 2020, Plaintiff reported to Dr. Pitman that his headache pain was 3 to

4 out of 10, and that his medications were helpful, his occipital pain was controlled with

narcotics, and his blood pressure medications helped his headaches. (Id.) Dr. Pitman

continued Plaintiff’s medications. (Id.) In March 2021, Plaintiff reported that his headaches

had worsened in severity, but his physical examination was unchanged, and Dr. Pitman

continued Plaintiff’s medications. (Id.)

This detailed discussion of Plaintiff’s complete medication history, including

frequent reports of improvement with medication, as well as his pain management

physician’s repeated concerns about Plaintiff’s use of said medication, is set forth in the

ALJ’s decision. Thus, contrary to Plaintiff’s assertions in his Opening Brief, the ALJ

clearly considered that physicians consistently prescribed medications for pain, including

narcotics.

Plaintiff does not specify a limitation related to his headache disorder the ALJ

should have included in the RFC. Late in his Opening Brief, though, he asserts the ALJ

should have determined the number of days Plaintiff would be absent from work based on

his impairments and included the same in evaluating the RFC. (Doc. 22, at 15). Plaintiff

may have intended this limitation to relate to his headache disorder. Regardless, the Court

notes that it is Plaintiff’s burden, not the ALJ’s, to provide evidence supporting RFC

limitations, including necessary absences from work. Plaintiff does not assert how many

days per week he would need to miss, nor does he attempt to substantiate his claim with

citation to the medical record. See, cf., Razo v. Colvin, 663 F. App’x 710, 717 (10th Cir.

2016) (finding the ALJ did not err in declining to limit RFC based on the plaintiff’s alleged

“need to take time off work for medical appointments” where the plaintiff did not

“substantiate his claim with the medical records,” and explaining, “[w]e decline to search

the voluminous administrative record to ascertain how many appointments each week Mr.

Razo could be expected to attend.”); see also Murrell v. Shalala, 43 F.3d 1388, 1390 n.2

(10th Cir. 1994) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.”). Similar to the court in Razo, this

Court will not speculate as to the number of absences the record might support.

Accordingly, the Court finds Plaintiff’s assertion of error fails.

D. Mental Impairments

Next, Plaintiff claims the ALJ erred in consideration of reported symptoms related

to his mental impairments. The ALJ found that Plaintiff suffered from major depressive

disorder, generalized anxiety disorder, and posttraumatic stress disorder. (AR, at 18). The

ALJ determined that as a result of these impairments, Plaintiff was limited to simple

instructions and decisions, only occasional interaction with others, only occasional changes

in work location, and a preclusion of strict production rates. (Id. at 21-22).

Plaintiff again fails to specify the limitation he thinks the ALJ should have included

in the RFC. As established, this is fatal to Plaintiff’s claim of error. McAnally, 241 F. App’x

at 518; Denman, 2019 WL 4059185, at *4; Morgan, 2018 WL 652335, at *6, supra.

Accordingly, the Court will not conduct a general review of the ALJ’s consideration of

Plaintiff’s mental health impairments. Out of an abundance of caution, however, the Court

has addressed below Plaintiff’s specific criticisms of the ALJ’s decision in this regard.

Plaintiff challenges the ALJ’s reliance on multiple medical examiners who noted

their opinion that Plaintiff was exaggerating his symptoms. (Doc. 22, at 10). Specifically,

Plaintiff states that while Dr. David E. Johnsen found that Plaintiff was exaggerating his

symptoms, the ALJ should not have relied on that in considering Plaintiff’s subjective

reports because Dr. Johnsen stated that Plaintiff’s “extremely dramatic behavior displays

are a cry for help to pay attention to complaints.” (Id.)

Dr. Johnsen’s report stated, in relevant part:

While it is apparent that Mr. Allen consciously attempted to make himself

appear more impaired than he actually is, the motivation for such symptom

exaggeration is unclear. It is possible that the motivation is that of

malingering for the purpose of external secondary gain, such as financial

compensation or more internal secondary gain, such as needing to justify his

continued unemployment. However, it is also possible that his motivation is

more of a “cry for help” in which he is trying to make sure those around him

pay attention to his complaints. His extremely dramatic behavior displays

certainly provide a measure of support for the latter hypothesis. Additionally,

while it is possible that Mr. Allen could have experienced some mild

cognitive difficulties shortly after his fall, any such deficits after a mild

concussion such as what he experienced would have resolved or at least

significantly improved after 15 months post injury so that there is no need

for any type of cognitive retraining or rehabilitation.

(AR, at 441). Significantly, while Dr. Johnsen speculated as to Plaintiff’s motivation for

exaggeration, the fact remains that Dr. Johnsen concluded that Plaintiff was exaggerating

his symptoms. Moreover, and contrary to Plaintiff’s assertion in his Opening Brief (Doc.

22, at 10), one treating physician, Dr. Leinen, also stated that “Plaintiff tends to exaggerate

his symptoms a bit.” (AR, at 29 (citing id., at 820)).

In any event, Plaintiff failed to identify a limitation the ALJ should have included

in the RFC arising from Plaintiff’s mental impairments. Accordingly, Plaintiff’s assertion

of error fails.

E. Obesity

Finally, Plaintiff objects to the ALJ’s consideration of obesity and specifically, how

it affects his other impairments. (Doc. 22, at 11-12). As the Commissioner notes, this

argument is directly belied by the ALJ’s decision. The ALJ considered Plaintiff’s obesity

throughout his decision. At Step Two, the ALJ determined Plaintiff’s obesity was a severe

impairment. (AR, at 19). At Step Three, pursuant to SSR 19-2p, the ALJ engaged in a

substantial analysis of Plaintiff’s obesity and its resulting functional limitations, if any. (Id.

at 19); see also SSR 19-2p, 2019 WL 2374244. In determining the RFC, the ALJ

specifically considered that Plaintiff’s “obesity may contribute to his musculoskeletal

impairments and pain symptoms” and ensured that the RFC limitations accounted for “any

further increase in weight . . . .” (AR, at 33-34).

Plaintiff asserts, in conclusory fashion, that his obesity has an inevitable impact on

his remaining impairments and therefore, should have resulted in additional or more severe

limitations in the RFC. (Doc. 22, at 11-12). However, Plaintiff’s assertion is misguided.

Further limitations are not presumed merely by the presence of obesity. “Plaintiff points to

no evidence in the medical record reflecting ‘functional limitations from [his] obesity or of

any impairments possibly caused or exacerbated by [his] obesity that are inconsistent with

the RFC[,] . . . .’ Jimison ex rel. Sims v. Colvin, 513 F. App’x 789, 798 (10th Cir. 2013),

and the ALJ need not speculate as to the impact of [his] obesity.” Owings v. Kijakazi, No.

CIV-20-1295-SM, 2021 WL 6197421, at *4 (W.D. Okla. Dec. 30, 2021) (citing Fagan v.

Astrue, 231 F. App’x 835, 837-38 (10th Cir. 2007) (“The ALJ discussed the evidence and

why he found [the claimant] not disabled at step three, and, the claimant—upon whom the

burden rests at step three—has failed to do more than suggest that the ALJ should have

speculated about the impact her obesity may have on her other impairments.”)).

Accordingly, the Court finds no error in the ALJ’s consideration of obesity.

VIII. The ALJ Presented Proper Hypotheticals to the Vocational Expert.

In his final issue on appeal, Plaintiff contends the ALJ erred at Step Five of the

sequential evaluation process. (Doc. 22, at 13-14). This assertion, however, is based upon

Plaintiff’s contention that the ALJ erred by failing to present a hypothetical question to the

VE that included additional limitations not included in the RFC. Plaintiff’s argument is

closely related to the arguments discussed above, as Plaintiff contends the ALJ’s failure to

properly consider and evaluate his subjective reports regarding the intensity, persistence,

and limiting effects of his impairments led to him posing an incomplete RFC hypothetical

to the VE. For the reasons discussed above, the ALJ’s RFC determination is supported by

substantial evidence, and the ALJ was under no obligation to include limitations in the RFC

that are not supported by the record. See Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir.

2016) (“The [ALJ] had to ask only about the effect of those limitations ultimately assessed;

the judge did not need to ask about the effect of limitations that he didn't believe applied.’’).

IX. Conclusion

Having 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, the undersigned

AFFIRMS the decision of the Commissioner for the reasons discussed above.

SO ORDERED this 4" day of May, 2023.

UNITED STATES MAGISTRATE JUDGE

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