“The ALJ set forth a summary of the relevant objective medical evidence earlier in his decision and he is not required to continue to recite the same evidence again in rejecting [an] opinion.”
How later courts described this case
- “The ALJ set forth a summary of the relevant objective medical evidence earlier in his decision and he is not required to continue to recite the same evidence again in rejecting [an] opinion.”
- “[A]n ALJ’s findings at other steps of the sequential process may provide a proper basis for upholding a step three conclusion that a claimant’s impairments do not meet or equal any listed impairment[.]”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
JEANINE B.,
Case No. 2:24-cv-00621-CMR
Plaintiff,
vs. MEMORANDUM DECISION AND
ORDER AFFIRMING ALJ DECISION
FRANK BISIGNANO,
Commissioner of Social Security,
Magistrate Judge Cecilia M. Romero
Defendant.
All parties in this case have consented to the undersigned conducting all proceedings (ECF
6). 28 U.S.C. § 636(c). Plaintiff Layna P. (Plaintiff), pursuant to 42 U.S.C. § 405(g), seeks judicial
review of the decision of the Commissioner of Social Security (Commissioner) denying her claim
for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). After careful
review of the record (Certified Administrative Record (Tr.), ECF 7), the parties’ briefs (ECF 11,
18, 19), the undersigned concludes that the Commissioner’s decision is supported by substantial
evidence and free from reversible error. For the reasons discussed below, the court hereby DENIES
Plaintiff’s Motion for Review of Agency Action (ECF 11) and AFFIRMS the decision of the
Commissioner.
I. BACKGROUND
Plaintiff applied for DIB in July 2022 (Tr. 59). Plaintiff was 63 years old in December
2021, when she claimed that she became disabled due to fibromyalgia, arthritis, and Crohn’s
disease (Tr. 59). She had worked in the relevant past as a service representative, reservation clerk,
claims clerk, and receptionist, which were semi-skilled and skilled occupations with specific
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vocational preparation (SVP) levels of 4, 5, and 7 (Tr. 23). See 20 C.F.R. § 404.1568(b), (c)
(defining semi-skilled and skilled work); Social Security Ruling (SSR) 00-4p, 2000 WL 1898704,
at *3 (explaining SVP levels).
The ALJ followed the Commissioner’s five-step sequential evaluation process for
disability claims (Tr. 14–24). See 20 C.F.R. § 404.1520(a)(4). In a decision dated January 23,
2024, the ALJ determined at step two that Plaintiff had severe impairments of degenerative disc
disease of the lumbar spine, degenerative disc disease of the cervical spine, arthritis of the
shoulders, fibromyalgia, and Crohn’s disease (Tr. 17). The ALJ found non-severe mental
impairments of pain disorder and adjustment disorder (Tr. 17). The ALJ found no limitations in
paragraph B criteria other than a mild limitation with concentrating, persisting, or maintaining
pace (Tr. 18). See id. §§ 404.1520a(d)(1), 404.1522(a).
At step three, the ALJ considered Listings 1.15 and 1.16 for skeletal spine disorders,
finding the criteria not met (Tr. 19) The ALJ then found that Plaintiff had the RFC to do a reduced
range of sedentary work without any mental limitations (Tr. 19). See id. §§ 404.1545(a)(1) (“Your
[RFC] is the most you can still do despite your limitations.”), 404.1567(a) (defining sedentary
work). At step four, the ALJ found that this RFC would allow Plaintiff to do her past relevant
work as a receptionist, customer service representative, reservation clerk, and claims clerk (Tr.
23). The ALJ thus concluded that Plaintiff was not disabled (Tr. 23). See id. § 404.1520(a)(4)(iv).
The ALJ decision became the Commissioner’s final decision when the agency’s Appeals Council
denied her request for review (Tr. 1–6). See 20 C.F.R. § 404.981.1 The court has jurisdiction
under 42 U.S.C. § 405(g).
1 References to the Code of Federal Regulations (C.F.R.) are to the 2022 edition.
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II. STANDARD OF REVIEW
“On judicial review, an ALJ’s factual findings [are] ‘conclusive’ if supported by
‘substantial evidence.’” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (quoting 42 U.S.C. §
405(g)). The substantial evidence threshold “is not high,” and “defers to the presiding ALJ, who
has seen the hearing up close.” Id. at 103, 108. Substantial evidence is “more than a mere
scintilla” and “means—and means only—such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. at 103 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Under this deferential standard, the court may neither reweigh the
evidence nor substitute its judgment for that of the ALJ. See Hendron v. Colvin, 767 F.3d 951,
954 (10th Cir. 2014). If the evidence is susceptible to multiple interpretations, the court “may not
displace the agency’s choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th
Cir. 2004)).
III. ARGUMENT
A. The ALJ’s step-two findings that Plaintiff experienced mild limitations in the B
criteria did not mandate the inclusion of any mental limitations in Plaintiff’s RFC.
Plaintiff argues that the ALJ erred in failing to include mental limitations in Plaintiff’s
RFC despite the ALJ’s step two findings (Pl. Br. at 8). At step two of the sequential evaluation
process, the ALJ found that Plaintiff had mild limitations in one of the four of the B criteria
(concentration, persistence, and pace) and no limitations in the other three B criteria areas (Tr. 17–
18). See 20 C.F.R. § 404.1520a. As noted by the ALJ, the “limitations identified in the ‘paragraph
B criteria’” are by definition not an assessment of Plaintiff’s RFC (Tr. 18). See SSR 96-8p, 1996
WL 374184, at *4 (“[T]he limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria
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are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and
3 of the sequential evaluation process.”).
The Tenth Circuit has repeatedly rejected the argument that paragraph B criteria findings
mandate mental limitations in the RFC determination (see Pl. Br. 8–11). In Beasley v. Colvin, 520
F. App’x 748 (10th Cir. 2013), the Tenth Circuit held that an “ALJ’s finding of ‘moderate
difficulties’ in social functioning in the ‘paragraph B’ criteria does not necessarily translate to a
work-related functional limitation for the purposes of the RFC assessment,” and that “[t]he ALJ
was under no obligation to include limitations in social functioning in [the claimant’s] RFC based
solely on his finding that she had ‘moderate difficulties’ in social functioning as part of the distinct
step-three analysis.” Id. at 754. Similarly, in DeFalco-Miller v. Colvin, 520 F. App’x 741 (10th
Cir. 2013), the court found that “the ALJ’s statement . . . that [the claimant] exhibited ‘no more
than’ moderate difficulties maintaining social functioning is neither a medical fact nor nonmedical
evidence” relevant to the RFC assessment. Id. at 748 (citing SSR 96-8p, 1996 WL 374184, at *4).
Much like Plaintiff, the claimant in that case “d[id] not argue that the record evidence, rather than
the ALJ’s [B criteria finding], compel[led] the inclusion of a . . . limitation in the RFC.” Id. Thus,
the ALJ was not obligated to include any mental RFC limitations after finding that Plaintiff
experienced mild limitations in one of the B criteria.
Rather, an ALJ must consider the effects of all the claimant’s medically determinable
impairments—including those found severe and those found non-severe—when assessing the
RFC. 20 C.F.R. § 404.1545(a)(2). Here, the ALJ found at step two that Plaintiff had medically
determinable mental impairments of pain disorder and adjustment disorder (Tr. 17). The ALJ
found that these impairments were non-severe because they did not cause more than minimal
limitation in Plaintiff’s ability to perform basic mental work activities (Tr. 17). See 20 C.F.R. §
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404.1522(a). In reaching this finding, the ALJ rated the B criteria, concluding that Plaintiff
experienced mild limitation in concentration, persistence, and pace (Tr. 18). See id. §
404.1520a(d)(1).
Plaintiff claims that “the ALJ did not explain his consideration of the combined effect of
all of the claimant’s medically determinable impairments—whether severe or not severe—in
assessing the claimant’s RFC,” and “he included no narrative discussion describing how the
evidence supports his conclusions about each of the four areas of mental functioning” (Pl. Br. at
10–11).2 However, the ALJ discussed Plaintiff’s mental conditions within the special technique
analysis regarding the four areas of mental functioning as well as in the RFC analysis and
explained why he ultimately concluded that Plaintiff’s non-severe mental impairments did not
result in any workplace functional limitations (Tr. 17–23).
Within the analysis of Plaintiff’s RFC, the ALJ recognized that Plaintiff claimed that she
was disabled due to pain and adjustment disorder and “fibro fog” (Tr. 17, 19–23). The ALJ then
considered the persuasiveness of the prior administrative medical findings by two State agency
psychological consultants, Dr. Ingebretsen and Dr. Hardy (Tr. 22–23). The ALJ noted that both
doctors found that Plaintiff did not have a severe mental impairment (Tr. 22–23; see Tr. 62, 73).
Both doctors found that Plaintiff had only a mild limitation in the B criteria of concentration,
persistence and pace (Tr. 62, 73). The ALJ determined that the prior administrative medical
findings were persuasive (Tr. 22–23). See 20 C.F.R. § 1520c(b).
2 See Velesquez v. O'Malley, No. CV 23-1012-DHU-KK, 2024 WL 5053346, at *6 (D.N.M. Dec. 10, 2024); see also
Wells v. Colvin, 727 F.3d 1061, 1068–69 (10th Cir. 2013) (“[A] conclusion that the claimant’s mental impairments
are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant’s
RFC and making conclusions at steps four and five. In his RFC assessment, the ALJ must consider the combined
effect of all medically determinable impairments, whether severe or not.”).
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Moreover, the ALJ considered within the RFC analysis that the record did not support that
Plaintiff’s non-severe mental impairments imposed any functional limitations (Tr. 19–23). The
ALJ acknowledged Plaintiff’s reports of pain and “fibro fog” but found that her allegations were
not fully consistent with the record (Tr. 19–20). He considered that Plaintiff told Dr. Hardy that
she could go to the movies, sew and crochet, drive, cook, perform light cleaning, shop
independently and usually had a good mood (Tr. 22; see Tr. 730–31). She told Dr. Ingebretsen that
she had no difficulty managing her finances or affairs, and could drive to run errands, and read
(Tr. 22; see Tr. 719). Her husband reported that she shopped independently twice a week for up
to an hour each trip, could pay attention for “long extended periods,” attended church and HOA
board meetings, followed written and verbal instructions very well, and got along with authority
figures very well (Tr. 22–23; see Tr. 252–54). The ALJ thus explicitly found as part of the RFC
analysis that Plaintiff did not experience any mental functional limitations that would impose
anything more than mild limitations on her ability to concentrate (Pl. Br. at 8–11). See Nelson v.
Colvin, 2:14-CV-00903-PMW, 2016 WL 3948063, at *2 (D. Utah July 19, 2016) (rejecting
Plaintiff’s assertion that the ALJ did not discuss non-severe mental impairments in the RFC when
ALJ did discuss non-severe impairments and doctor did not impose any functional limitations).
The ALJ discussed the specific evidence supportive of this finding within the section of
her decision devoted to the step-two analysis (see Tr. 17–18). The Tenth Circuit has recognized
that, when evaluating an ALJ’s finding at one step of the sequential evaluation process, a
reviewing court may look elsewhere in an ALJ’s decision to find evidence supportive of that
finding. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (“[A]n ALJ’s findings
at other steps of the sequential process may provide a proper basis for upholding a step three
conclusion that a claimant’s impairments do not meet or equal any listed impairment[.]”).
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Likewise, the Tenth Circuit has held that an ALJ is not required to copy her discussion of the
evidence from one part of her decision and paste it into another part. See Endriss v. Astrue, 506
F. App’x 772, 777 (10th Cir. 2012) (“The ALJ set forth a summary of the relevant objective
medical evidence earlier in his decision and he is not required to continue to recite the same
evidence again in rejecting [an] opinion.”); see also Webb v. Comm’r, Soc. Sec. Admin., 750 F.
App’x 718, 721 (10th Cir. 2018) (The ALJ summarized relevant evidence earlier in the decision,
and was not required to repeat that summary in weighing an opinion).
B. The ALJ reasonably found that Plaintiff’s reports of debilitating mental symptoms
were inconsistent with other evidence.
Plaintiff argues that the ALJ did not adequately evaluate her subjective symptoms (Pl. Br.
at 11–15). Plaintiff points to her testimony that fibromyalgia made it “impossible” to walk to the
back of a store, and that she sometimes had trouble counting money because fibromyalgia caused
“brain fog” (Pl. Br. at 12, 14; see Tr. 43). The ALJ acknowledged her subjective symptom
statements (Tr. 19–20), but found they were not consistent with the medical evidence and other
evidence in the record (Tr. 20).
The RFC assessment must address the claimant’s reported symptoms. See 20 C.F.R. §
404.1529; SSR 16-3p, 2017 WL 5180304. The ALJ found that Plaintiff’s reported symptoms were
inconsistent with other evidence (Tr. 20). This finding is due great deference by the court. See
White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2002) (“The ALJ enjoys an institutional advantage
in making the type of determination at issue here. Not only does an ALJ see far more [S]ocial
[S]ecurity cases than do appellate judges, he or she is uniquely able to observe the demeanor and
gauge the physical abilities of the claimant in a direct and unmediated fashion. As a result, the
ALJ’s credibility findings warrant particular deference.”). Here, the ALJ gave well-supported
reasons for concluding that Plaintiff’s reported mental symptoms were not as severe as she
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claimed: (1) objective medical evidence was inconsistent with those reported symptoms, and (2)
her daily activities were not limited to the extent that his reported symptoms would suggest.3
Objective medical evidence
First, the ALJ found that Plaintiff’s reported symptoms were inconsistent with objective
medical evidence. See 20 C.F.R. § 404.1529(c)(4) (“[W]e will evaluate your statements in relation
to the objective medical evidence.”). Even in cases involving mental impairments, “objective
medical evidence is a useful indicator to help make reasonable conclusions about the intensity and
persistence of symptoms[.]” SSR 16-3p, 2017 WL 5180304, at *5. The ALJ recognized that
Plaintiff testified that she had fibromyalgia related brain fog (Tr. 19-20; see Tr. 43). This
testimony, however, was inconsistent with Dr. Hardy’s examination. Dr. Hardy observed that
Plaintiff was friendly, cooperative, and “fully invested” in the interview and testing (Tr. 730). She
was able to remember three out of three items immediate and two out of three with a five-minute
delay. She was able to remember four out of four steps of a verbally presented task (Tr. 730).
When asked to estimate her intellectual functioning, she responded “slightly above average” (Tr.
730). Testing confirmed that her functioning was at least in the average range and her verbal skills
were in the high-average range as was her full-scale IQ (Tr. 18; see Tr. 732). Dr. Hardy found that
“[s]he displayed no challenges of attention or concentration” during the evaluation and she had no
cognitive difficulty (Tr. 732). Plaintiff did report that she had a “bit of memory issues with
appointments and things” (Tr. 731). Plaintiff’s argument that the ALJ should have relied on her
3 Agency regulations lay out a number of factors that an ALJ must consider when evaluating a claimant’s symptoms.
See 20 C.F.R. § 404.1529. However, there is a “difference between what an ALJ must consider as opposed to what
he must explain in the decision.” Mounts v. Astrue, 479 F. App’x 860, 866 (10th Cir. 2012). An ALJ is not required
to go factor by factor through the evidence, discussing how the evidence relates to each factor. Instead, the ALJ need
only set forth the specific evidence on which he relied. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); Poppa
v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009).
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limited testimony, which contradicted medical findings, is untenable (Pl. Br. at 11–15). The ALJ
reasonably found that her concentration was not as limited as she claims.
Plaintiff’s daily activities
The ALJ found that Plaintiff’s reported symptoms were also inconsistent with her daily
activities. See 20 C.F.R. § 404.1529(c)(3)(i) (The ALJ considers a claimant’s activities when
evaluating symptoms). The ALJ contrasted Plaintiff’s claimed inability to concentrate with her
admitted ability to perform certain tasks that required concentration (Tr. 18, 20, 22). The ALJ
cited, for example, Plaintiff’s report that she read a great deal (Tr. 18, 20, 22; see Tr. 730–32). He
also pointed to her ability to drive, shop independently, and follow a simple recipe (Tr. 18; see Tr.
730–32). Plaintiff reported that she spent time with her grandchildren and family and attended
church (Tr. 731). She was able to go to the movies and restaurants, sew, crochet, and make crafts
(Tr. 731). Although the “sporadic performance” of activities like performing a few household
tasks “does not establish that a person is capable of engaging in substantial gainful activity,” Frey
v. Bowen, 816 F.2d 508, 516–17 (10th Cir. 1987), an ALJ may consider such activities when, as
here, they undercut a claimant’s reported symptoms. See Wilson v. Astrue, 602 F.3d 1136, 1146
(10th Cir. 2010); Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1349 (10th Cir. 1990).
The findings and discussion by the ALJ at step two are directly relevant to the symptom
evaluation, which, in turn, is directly relevant to the RFC assessment: “Since the purpose of the
credibility evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s credibility and RFC
determinations are inherently intertwined.” See Poppa, 569 F.3d at 1171. As such, the court finds
that the ALJ’s discussion of this evidence at step two in conjunction with the ALJ’s finding within
the RFC analysis that “the evidence does not establish [Plaintiff’s] mental impairments as being
significant enough to impose any functional limitations” (Tr. 31) was sufficient to demonstrate
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that the ALJ considered Plaintiff's non-severe mental impairments as part of the RFC assessment.
Substantial evidence therefore supports the ALJ’s finding that Plaintiff did not experience any
mental RFC limitations. See Biestek, 587 U.S. at 103.
IV. CONCLUSION
Because the ALJ’s decision is supported by substantial evidence and legally sound, it is
AFFIRMED. Judgment shall be entered in accordance with Fed. R. Civ. P. 58, consistent with the
U.S. Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292, 296-304 (1993).
DATED this 2 September 2025.
Magistrate Judge Md M. Romero
United States District Court for the District of Utah
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