Summary
In Trujillo, only one medical source opinion was at issue to which the ALJ had accorded only substantial weight, and the Court found that the ALJ had included significant limitations in three functional areas that specifically addressed the marked limitation in concentration and pace.
Summary of this case from Miller v. SaulOpinion
CIV No. 16-851 GBW
06-23-2019
MICHELLE TRUJILLO, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER DENYING REMAND
This matter comes before the Court on Plaintiff's Motion to Remand the Social Security Agency's ("SSA") decision to deny Plaintiff Supplemental Security Income (SSI) benefits. Doc. 19. For the reasons discussed below, Plaintiff's Motion is DENIED, and this action is DISMISSED with prejudice.
I. PROCEDURAL HISTORY
Plaintiff filed an initial application for SSI benefits on June 5, 2012. Administrative Record ("AR") at 173-79. Plaintiff alleged that she had a disability resulting from bipolar disorder and obsessive compulsive disorder. AR at 211. An Administrative Law Judge (ALJ) held a hearing on September 8, 2014. AR at 34-79.
On November 26, 2014, the ALJ issued an unfavorable decision, concluding that Plaintiff could perform jobs existing in significant numbers in the national economy and therefore was not disabled. AR at 13-28. Plaintiff appealed the denial of her application to the Appeals Council, which declined review on June 21, 2016. AR at 1-6. Plaintiff filed suit in this Court on July 25, 2016, seeking review of the ALJ's decision. Doc. 1.
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the Commissioner only to determine whether it (1) is supported by "substantial evidence" and (2) comports with the proper legal standards. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir. 1991). "In reviewing the ALJ's decision, we neither reweigh the evidence nor substitute our judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotations omitted).
Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Casias, 933 F.3d at 800. "The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). "[I]n addition to discussing the evidence supporting his decision, the ALJ must also discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Id. at 1010. "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
III. PARTIES' POSITIONS
Plaintiff asserts that the ALJ erred by: (1) failing to properly consider limitations in Plaintiff's ability to concentrate, carry out instructions, maintain pace, and complete a normal workday or workweek without interruptions from psychologically based symptoms; (2) failing to resolve an inconsistency between the vocational expert's (VE's) testimony and the Dictionary of Occupational Titles (DOT) regarding light jobs; (3) failing to properly consider Plaintiff's global assessment of functioning (GAF) scores; and (4) failing to properly assess Plaintiff's credibility. See doc. 20 at 6-16. Defendant argues that: (1) the ALJ properly considered Plaintiff's limitations and incorporated all adopted limitations into her RFC; (2) no conflict existed between the VE's testimony and the DOT; (3) the ALJ reasonably assessed Plaintiff's GAF scores; and (4) the ALJ properly discounted Plaintiff's credibility. See doc. 22 at 8-19. Ultimately, the Court concludes that the ALJ did not commit reversible error and therefore the opinion should not be overturned.
Additionally, Plaintiff argues that the Court should reverse the Commissioner's finding of non-disability and find Plaintiff disabled as a matter of law on the basis of SSR 85-15. See doc. 20 at 16-18. However, this argument fundamentally relies upon the merits of Plaintiff's first argument that the ALJ reached erroneous conclusions regarding Plaintiff's limitations. See id. at 7-13; 16-18. The Court's analysis and rejection of Plaintiff's first argument therefore renders unnecessary any discussion of this contention as a stand-alone argument. See infra pp. 16-23.
IV. ALJ EVALUATION
A. Legal Standard
For purposes of SSI benefits, an individual is disabled when he or she is unable "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.A. § 1382c(a)(3)(A). To determine whether a person satisfies these criteria, the SSA has developed a five-step test. See 20 C.F.R. § 416.920. If the Commissioner finds an individual disabled at any step, the next step is not taken. Id. § 416.920(a)(4).
At the first four steps of the analysis, the claimant has the burden to show: (1) she is not engaged in "substantial gainful activity;" (2) she has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and that either (3) her impairments meet or equal one of the "Listings" of presumptively disabling impairments or (4) she is unable to perform her "past relevant work." Id. § 416.920(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Step four of this analysis consists of three phases. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ determines the claimant's residual functional capacity ("RFC") in light of "all of the relevant medical and other evidence." 20 C.F.R. § 416.945(a)(3). A claimant's RFC is "the most [he or she] can still do despite [physical and mental] limitations." Id. § 416.945 (a)(1). Second, the ALJ determines the physical and mental demands of the claimant's past work. "To make the necessary findings, the ALJ must obtain adequate 'factual information about those work demands which have a bearing on the medically established limitations.'" Winfrey, 92 F.3d at 1024 (quoting Social Security Ruling 82-62 (1982)). Third, the ALJ determines whether, in light of the RFC, the claimant is capable of meeting those demands. See id. at 1023, 1025.
If the ALJ concludes that the claimant cannot engage in past relevant work, he or she proceeds to step five of the evaluation process. At step five, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. See Grogan, 399 F.3d at 1261.
B. The ALJ's Decision
On November 26, 2014, the ALJ issued a decision denying Plaintiff's application for benefits. See AR at 13-28. In denying Plaintiff's application, the ALJ applied the required five-step sequential analysis. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of February 28, 2012. AR at 15. At step two, the ALJ determined that Plaintiff had the following severe impairments: polysubstance abuse/dependence, bipolar disorder, obsessive compulsive disorder, post-traumatic stress disorder, unspecified mood disorder, antisocial/cluster B traits, chronic deep vein thrombosis, and bilateral pulmonary emboli / chest pain. AR at 15. At step three, the ALJ concluded that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity" of a listed impairment. AR at 17.
At step four, the ALJ determined that Plaintiff had the RFC to "perform light work as defined in 20 CFR [§] 416.967(b)," with certain specified limitations. AR at 19. The ALJ also found that Plaintiff has no past relevant work. AR at 26. However, at step five, the ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national economy, including positions as a housekeeper/cleaner, a cleaner/polisher, and a stone setter. AR at 27. Therefore, the ALJ concluded that Plaintiff was not disabled. AR at 27.
V. ANALYSIS
A. The ALJ Properly Supported His Assessment of Plaintiff's Credibility
Plaintiff argues that the ALJ erred in his assessment of Plaintiff's credibility. Doc. 20 at 15-16. Credibility determinations are within the province of the ALJ, and the Court should generally defer to the ALJ's credibility determinations. See Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1030 (10th Cir. 1994) (citing Williams v. Bowen, 844 F.2d 748, 755 (10th Cir. 1988)); see also Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (discussing the factors applicable to an ALJ's credibility determination). However, the ALJ's opinion must contain "specific reasons" for his credibility findings that are "closely and affirmatively linked" to evidence in the record. Hardman v. Barnhart, 362 F.3d 676, 678-79 (10th Cir. 2004). Moreover, credibility determinations must be supported by substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citation omitted). The Tenth Circuit Court of Appeals has explained, however, that Kepler does not "reduce[] credibility evaluations to formulaic expressions" and it "'does not require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, the dictates of Kepler are satisfied.'" White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)).
Here, Plaintiff argues that "the ALJ violated Social Security Ruling 16-3p in his assessment of [Plaintiff's] credibility." Doc. 20 at 15. Specifically, Plaintiff argues that none of the inconsistencies the ALJ identified within Plaintiff's testimony to support his credibility assessment "relates directly to the credibility of any of [Plaintiff's] psychiatric impairments or limitations, nor do these assertions do anything to undermine the credibility of her actual psychiatric symptoms." Id. at 16. Plaintiff further alleges that the ALJ "provided no 'specific reason' for finding that [Plaintiff's] allegations of severe mental impairments were not entirely credible." Id.
Defendant disputes whether SSR 16-3p is even applicable, as this ruling replaced SSR 96-7p and became effective only after the ALJ had issued his decision. Doc. 22 at 11. Both rulings set forth how the Court should interpret the Social Security regulation which governs how the SSA evaluates a claimant's symptoms. See 20 C.F.R. § 416.929(c)(1). SSR 16-3p was issued by the SSA to replace SSR 96-7p for the purpose of eliminating the term "credibility" from the SSA's regulatory policy, insofar as that term created the unwanted implication that subjective symptom evaluation involves "an examination of an individual's character." See SSR 16-3p. Notably, the relevant case law supports Defendant's argument that SSR 96-7p rather than 16-3p should be applied, as only the former "was in effect as of the date of the ALJ's decision." Ryan v. Colvin, No. CV 15-0740 KBM, 2016 WL 8230660, at *4 n.2 (D.N.M. Sept. 29, 2016) (citing Chapo v. Astrue, 682 F.3d 1285, 1291 n.5 (10th Cir. 2012)). However, the Court need not decide this question, as the ALJ did not commit error in evaluating Plaintiff's symptoms even under Plaintiff's preferred analysis as set forth in SSR 16-3p.
Plaintiff does not contend that the ALJ's credibility determination violates SSR 96-7p. See generally doc. 20. Therefore, the Court offers no analysis as to that ruling. See Velasquez v. Astrue, 301 F. App'x 778, 779 (10th Cir. 2008) (unpublished) ("If a claimant fails to present an issue to the district court, the issue is waived unless compelling reasons dictate that the waiver be excused.") (citing Crow v. Shalala, 40 F. 3d 323, 324 (10th Cir. 1994)).
Although Plaintiff cites no cases to support her argument and also fails to identify the section of SSR 16-3p that she believes the ALJ violated, it appears to the Court that the relevant portion of the ruling is as follows:
The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.SSR 16-3p (emphasis added).
Here, the ALJ found that "[Plaintiff's] allegations are [] not fully credible." AR at 23. To support his finding, the ALJ explained that the "medical record documents . . . little that appears to be severe in nature," and that Plaintiff's "physical impairments have been treated conservatively[] and without invasive surgery or other more extreme measures." AR at 23. The ALJ explained that Plaintiff's "history of legal problems further undercuts her credibility in this circumstance" given that one of her claimed impairments resulted from "an attempt at shoplifting," and that her drug abuse issues "persisted through much of the period in question . . . [and] interfered with the development of the record at times . . . ." AR at 23. The ALJ also noted "problematic elements of the medical record that document noncompliance from the claimant," such as having missed several dosages of medication and "resist[ing] instructions [from hospital treating staff] and smok[ing] on hospital property." AR at 24. Further, the ALJ thoroughly discussed Plaintiff's medical record and cited evidence in the record which supports his conclusions regarding Plaintiff's history of legal problems, drug abuse, and noncompliance. See AR at 21-24, 473-74, 552-53, 802, 813.
Finally, the ALJ found "substantial contradictions that occur in [Plaintiff's] own statements within the record." AR at 24. Specifically, the ALJ explained that Plaintiff "told Dr. Murphy in her psychological consultative examination that she was laid off from General Mills due to obsessive behavior as it related to workplace neatness," whereas "elsewhere she recounted that she was fired due to her history of felony convictions." AR at 24. The ALJ explained that "[t]hese types of problems make it difficult to take all of [Plaintiff's] allegations at face value," and that he therefore looked for other evidence in the record "to find objective support for [Plaintiff's] allegations." AR at 24. The ALJ also supported this conclusion as to the credibility of Plaintiff's subjective complaints with evidence from the record. AR at 473, 531. Therefore, the Court finds that the ALJ properly provided specific reasons, supported by substantial evidence, for his consideration of Plaintiff's credibility, and the ALJ did not err in his credibility determination even assuming SSR 16-3p is applicable. See, e.g., Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (upholding ALJ's negative credibility determination where "[t]he ALJ's decision points out a number of [] instances of misrepresentation, and the record contains many more").
B. The ALJ Properly Considered Plaintiff's Global Assessment of Functioning Scores
Plaintiff argues that the ALJ erred in failing to apply the correct standards in considering Plaintiff's GAF scores. Doc. 20 at 14. Specifically, Plaintiff claims that the ALJ failed to apply the standards of Administrative Message (AM) 13066, dated July 22, 2013. Id. at 14-15. This message states that an ALJ should "consider a GAF rating as opinion evidence" and may rely on the GAF rating "as a measure of impairment severity and mental functioning depend[ing] on whether the GAF rating is consistent with other evidence, how familiar the rater is with the claimant, and the rater's expertise." Doc. 20 at 14; see also Petterson v. Colvin, No. 1:14CV389, 2016 WL 5679216, at *7 (M.D.N.C. Sept. 30, 2016) (quoting AM-13066). Plaintiff also argues that in accordance with AM-13066, an ALJ must "provide good reasons" to not give a GAF rating controlling weight if it is provided by a treating source. Doc. 20 at 14.
Defendant points the Court to a revised version of Administrative Message 13066, dated January 2014, which states that a GAF "needs supporting evidence to be given much weight" and is merely "one opinion we consider with all the evidence about a person's functioning." Doc. 22 at 16; see also Nienaber v. Colvin, No. C13-1216-RSM, 2014 WL 910203, at *4 (W.D. Wash. Mar. 7, 2014). The January 2014 revision of AM-13066 also states that "[u]nless the clinician clearly explains the reasons behind his or her GAF rating, and the period to which the rating applies, it does not provide a reliable longitudinal picture of the claimant's mental functioning for a disability analysis." Doc. 22 at 16; see also Nienaber, 2014 WL 910203, at *4.
The SSA again revised AM-13066 in October 2014, explaining that "[a] GAF rating alone is never dispositive of impairment severity" and that "[u]nless the GAF rating is well supported and consistent with other evidence in the file, it is entitled to little weight under [the SSA's] rules." See Myers v. Comm'r of Soc. Sec., No. 1:14-CV-271-HSM-SKL, 2015 WL 9906165, at *5 (E.D. Tenn. Dec. 30, 2015), report and recommendation adopted sub nom. Myers v. Colvin, No. 1:14-CV-271, 2016 WL 297753 (E.D. Tenn. Jan. 22, 2016) (quoting AM-13066 REV (Oct. 14, 2014)) (citations omitted). However, neither party has provided briefing on this most recent revision, nor does it counsel in favor of accepting Plaintiff's argument.
The Tenth Circuit Court of Appeals has "repeatedly noted that generalized GAF scores, which do not specify particular work-related limitations, may be helpful in arriving at an RFC but are not essential to the RFC's accuracy." Luttrell v. Astrue, 453 F. App'x 786, 792 n.4 (10th Cir. 2011) (unpublished) (internal citations and quotations omitted). The Tenth Circuit has also held that an ALJ is not required to discuss a GAF rating in a determination of a claimant's RFC. See, e.g., Zachary v. Barnhart, 94 F. App'x 817, 819 (10th Cir. 2004) (unpublished); see also Kearns v. Colvin, 633 F. App'x 678, 681-82 (10th Cir. 2015) (unpublished) (no error in failing to discuss GAF scores where substantial evidence supports the ALJ's decision and "it is obvious the ALJ considered the medical records that contained the GAF scores").
Here, the ALJ did consider Plaintiff's GAF scores in determining her RFC, stating as follows:
The record contains several [GAF] scores present in the record. Although a GAF score can offer some evidence regarding the severity of [Plaintiff's] mental impairment, it is not dispositive on the issue. A GAF score is a mere snapshot of [Plaintiff's] ability to function at the particular time of the assessment. It does, however, include factors such as legal, housing[,] or financial problems which are not properly part of the disability analysis under the Social Security Act. Furthermore, the Commissioner has declined to endorse the GAF scale for "use in Social Security and SSI disability programs," and has indicated GAF scores have no "direct correlation to the severity requirements [of the] mental disorders listings." Given the issues noted above, GAF scores here are generally assessed little weight in the development of the [RFC] unless noted otherwise.AR at 24 (internal citation omitted). From this discussion, it is clear that the ALJ considered the Plaintiff's GAF scores and provided specific, legitimate reasons for the little weight he gave to them. Consequently, the ALJ did not err in his treatment of Plaintiff's GAF scores. See Mirabal v. Colvin, No. 1:15-CV-00869-LF, 2016 WL 8230702, at *7-8 (D.N.M. Dec. 30, 2016) (no error where "ALJ provided specific, legitimate reasons for the weight he gave . . . [to the] GAF score[s]"); see also Brannon v. Colvin, No. 3:12-CV-00827, 2015 WL 4479708, at *4 (M.D. Tenn. July 21, 2015) ("Unless the GAF rating is well supported and consistent with other evidence in the file, it is entitled to little weight under [the SSA's] rules." ) (quoting AM-13066 REV (Oct. 14, 2014)).
C. The ALJ Did Not Violate His Duty to Resolve Conflicts between the VE's Testimony and the DOT
Next, Plaintiff argues that the ALJ erred in failing to resolve a conflict between the VE's testimony and the DOT regarding light jobs. Doc. 20 at 13-14. The governing Social Security Ruling instructs that "occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT." SSR 00-4P, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000). The Ruling further instructs that "[w]hen there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled." Id. Further, in the case of a conflict the ALJ must "explain in the determination or decision how he or she resolved the conflict." Id. at *4.
Here, the ALJ asked the VE a hypothetical in which an individual "can stand and walk six hours each in an eight-hour day for [] 30 to 45 minutes at a time[,] and can sit six hours in an eight-hour day." AR at 68-69. From this hypothetical, the VE responded that an individual with this limitation could perform occupations including those of a housekeeper/cleaner, cleaner/polisher, and stone setter. AR at 69-70. Plaintiff alleges that there is a conflict between the hypothetical asked by the ALJ and the DOT, as "'[t]here is not explanation as to how these jobs, described as being light, would allow a person to stand and/or walk for only 30 to 40 minutes at a time." Doc. 20 at 14. Plaintiff notes that "light work is defined as work requiring the ability to stand and/or walk up to 6 hours in an 8-hour day." Id. (citing SSR 83-10).
The Court finds no conflict between the VE's testimony and the DOT. First, the DOT descriptions of each of the three jobs do not include any requirement of standing or walking ability. See DOT 323.687-014, 1991 WL 672783 (cleaner/housekeeping), DOT 709.687-010, 1991 WL 679134 (cleaner/polisher), DOT 735.687-034, 1991 WL 679985 (stone setter). With nothing more than silence from the DOT regarding the requirement of standing or walking, there can be no conflict between the VE's testimony and the DOT as to these limitations. See Wahpekeche v. Colvin, 640 F. App'x 781, 785-86 (10th Cir. 2016) (unpublished) (no conflict where "DOT's description of [the occupation] does not expressly refer to a sit/stand option"). While Plaintiff relies on SSR 83-10 to support her argument that there is a conflict between the VE's testimony and the DOT, that Ruling explains that the full range of light work "requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." SSR 83-10, 1983 WL 31251, at *5, *6 (S.S.A. Jan. 1, 1983) (emphasis added). In other words, the ALJ's hypothetical of a person who is able to "stand and walk six hours each in an eight-hour day for [] 30 to 45 minutes at a time" is entirely consistent with the requirements set forth in SSR 83-10 of jobs in the "light work" category, including cleaner/housekeeper and cleaner/polisher.
"Stone setter" is in the "sedentary work" category and therefore requires only occasional walking and standing at most. See SSR 83-10, 1983 WL 31251, at *5. Therefore, there is also no conflict between the VE's testimony and the DOT regarding this occupation.
Second, the ALJ specifically asked whether the VE's testimony was consistent with the DOT listings, and the VE confirmed that it was consistent. AR at 71. An ALJ is permitted to rely on a VE's confirmation that her testimony is consistent with the DOT. See Thompson v. Colvin, 551 F. App'x 944, 949 (10th Cir. 2014) (unpublished) (no duty to resolve conflict where "the VE testified that the jobs he identified were consistent with a hypothetical person with [the claimant's] impairments and the DOT"). Therefore, the ALJ had no duty to resolve any alleged conflict regarding the VE's testimony.
D. The ALJ Properly Incorporated All Adopted Limitations into Plaintiff's RFC
Plaintiff argues that the ALJ erred by failing to include the following limitations in his determination of Plaintiff's RFC: (1) carrying out instructions; (2) concentration and pace; and (3) completing a normal workday/workweek without interruptions from psychologically based symptoms. Doc. 20 at 7-13. The ALJ determined Plaintiff's RFC as follows:
After careful consideration of the entire record, I find that [Plaintiff] has the [RFC] to perform light work as defined in 20 CFR [§] 416.967(b) except [Plaintiff] can stand and walk six hours each in an eight-hour day for 30-45 minutes at a time. [Plaintiff] can sit six hours in an eight-hour day. [Plaintiff] must avoid more than occasional exposure to irritants such as fumes, odors, dust, gases, chemicals, and poorly ventilated spaces. [Plaintiff] is fully capable of learning, remembering, and performing
simple, routine and repetitive work tasks, involving simple one- and two-step work instructions, which are performed in a routine, predictable, and low stress work environment, defined as one in which there is a regular pace, few work place changes, and no "over the shoulder" supervision. [Plaintiff] may have occasional contact with supervisors and coworkers, but should have minimal to no contact with the public.AR at 19.
i. Plaintiff's limitation in carrying out instructions
Plaintiff argues that the ALJ's assertion that Plaintiff can carry out simple one- to two-step work instructions is inconsistent with the findings of Dr. Finian Murphy, the consultative examiner. Doc. 20 at 11. Dr. Murphy found that Plaintiff's "ability to carry out instructions, to concentrate and to persist at tasks is markedly limited by her psychological and medical problems." AR at 472. Plaintiff further argues that she testified at the hearing that "she had trouble following instructions." Doc. 20 at 11. However, the ALJ found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely credible," and thus properly discounted Plaintiff's testimony. AR at 21; see supra pp. 6-10. Additionally, the ALJ considered Dr. Murphy's opinion and gave it "some weight." AR at 24. In explaining the assignment of only "some weight" to that opinion, the ALJ stated that "[t]he opinion does not go into great detail in connecting any limitations with [Plaintiff's] impairments," and that "[t]he opinion also appears to be based largely on the subjective reporting of [Plaintiff], which is problematic in this circumstance." AR at 24. As these conclusions are supported by evidence contained in the record, the Court finds that the ALJ provided sufficient explanation as to why he gave only some weight to Dr. Murphy's opinion that Plaintiff is markedly limited in carrying out instructions and ultimately incorporated a less severe limitation into the RFC determination. AR at 471-76; see Endriss v. Astrue, 506 F. App'x 772, 775 (10th Cir. 2012) (unpublished) (no error where ALJ "provided good reasons for the weight he gave to the medical source opinions").
ii. Plaintiff's marked limitation in concentration and pace
Plaintiff next argues that the ALJ failed to properly consider Plaintiff's limitations in concentration and pace. Doc. 20 at 8-11. In his determination of Plaintiff's RFC, the ALJ considered the opinion of Ms. Asha Pollem, Plaintiff's psychiatric nurse practitioner. AR at 24-25. In her opinion, Ms. Pollem found that Plaintiff was markedly limited in "maintaining concentration, persistence or pace resulting in failure to complete tasks in a timely manner." AR at 893. In her mental RFC assessment, Ms. Pollem noted that Plaintiff was markedly limited in the following: (1) "[t]he ability to maintain attention and concentration for extended periods;" (2) "[t]he ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances;" (3) "[t]he ability to sustain an ordinary routine without special supervision;" (4) "[t]he ability to work in coordination with or proximity to others without being distracted by them;" and (5) "[t]he ability to complete a normal work-day and work-week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." AR at 894.
The ALJ gave Ms. Pollem's opinion "substantial, but not great, weight." AR at 25. The ALJ explained that the opinion "contain[s] some contradictory elements, particularly its account of any episodes of decompensation." AR at 25. However, the ALJ specifically found that the opinion's descriptions of Plaintiff's "limitations within the concentration, persistence, and pace functional area match up clearly with other observations and evidence from the record." AR at 25. The ALJ further stated that Ms. Pollem's "analysis also reflects a reasonable knowledge of the types of functional analysis required for the disability adjudication process." AR at 25. Therefore, although the ALJ did not fully adopt Ms. Pollem's opinion, he did adopt her opinions as to Plaintiff's marked limitations in concentration, persistence, and pace.
Because these marked limitations are not explicitly included in the RFC laid out by the ALJ, Plaintiff argues that the ALJ failed to incorporate them into the RFC. Defendant contends that the ALJ sufficiently incorporated such limitations by restricting Plaintiff to: (1) "simple, routine, and repetitive work involving one and two step instructions;" (2) "routine, predictable, and low-stress work environments with only a regular pace, few changes and no 'over the shoulder' supervision;" and (3) limited contact with supervisors and coworkers and minimal to no contact with the public. Doc. 22 at 9.
Defendant correctly notes that the ALJ is not required to "parrot [a medical examiner's] exact descriptions of [a claimant's] limitations." Chavez v. Colvin, 654 F. App'x 374, 375 (10th Cir. 2016) (unpublished). In fact, the Tenth Circuit has held that an ALJ can use language similar to that contained in Plaintiff's RFC to incorporate a medical examiner's findings of moderate limitations in these areas. See id. (ALJ incorporated moderate limitations found in a medical opinion where the ALJ noted that the claimant is "limited to simple work-related decisions with few workplace changes" and "no interaction with the public, and only occasional and superficial contact with co-workers"); see also Perez v. Colvin, No. CV 15-0076 KBM, 2016 WL 8230704, at *4 (D.N.M. July 25, 2016) (citing Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016), for the proposition that limiting a claimant to "simple routine tasks" is "sufficient to incorporate [a claimant's] moderate limitations . . . [in] performing at a consistent pace without excessive rest periods."). Specifically, the Tenth Circuit has held that a moderate limitation in concentration, persistence, and pace can be incorporated into an RFC which states that the claimant "could not engage in face-to-face contact with the public" and "could engage in only simple, repetitive, and routine tasks." Smith, 821 F.3d at 1269.
However, because the cases cited above considered whether a moderate limitation could be included by language limiting a claimant to simple tasks and restricted contact with the public, they do not conclusively resolve whether such language can incorporate marked limitations. See Sayles v. Astrue, 275 F. App'x 790, 794 (10th Cir. 2008) (unpublished) ("The ALJ specifically found that [the claimant's] limitations were moderate, not marked—two entirely different things in a Mental Residual Functional Capacity Assessment[.]"). Thus, the Court must determine whether Plaintiff's marked limitation in concentration, persistence, and pace as found by the ALJ were adequately incorporated into the ALJ's assessment of Plaintiff's RFC.
In Nelson v. Colvin, 655 F. App'x 626, 629 (10th Cir. 2016) (unpublished), the Tenth Circuit considered the similar question of whether an ALJ accounted for various marked limitations in mental abilities by finding that the claimant is limited to unskilled work. In affirming the district court's denial of remand, the court explained that "[e]ven though [the doctor] noted marked limitations in [the claimant's] ability to remember detailed instructions, carry out detailed instructions, and interact appropriately with the public, unskilled work does not require these abilities . . . ." Id. First, Nelson establishes that there is nothing so unique about marked limitations which per se prevents them from being incorporated into more generic limitations on categories of work. Second, while Nelson did not involve marked limitations in concentration, persistence, and pace, it did involve marked limitations to similar mental faculties. Consequently, the rationale of Nelson strongly supports the argument that such marked limitations can be incorporated into an RFC by limiting the claimant to certain types of simple work. See also Cress v. Colvin, No. 12-CV-86-FHM, 2013 WL 2240059, at *6 (N.D. Okla. May 21, 2013) (limiting a claimant to "simple, repetitive, and routine" work was sufficient to incorporate marked limitations in the claimant's ability to understand, remember, and carry out detailed instructions and in her ability to interact with the public); Muntzert v. Astrue, No. 09-2447-JWL, 2010 WL 3724858, at *6 (D. Kan. Sept. 17, 2010) ("The ALJ's RFC[,] finding that [the claimant] is limited to 'simple, repetitive tasks in a low stress, nonpublic work environment,' appears to specifically accommodate [the doctor's] finding that Plaintiff is markedly limited in his ability to respond appropriately to usual work situations and to changes in a routine work setting."); Hogue v. Colvin, No. CIV-14-1242-STE, 2016 WL 319890, at *4-5 (W.D. Okla. Jan. 25, 2016) (marked limitations in the claimant's abilities to understand, remember, carry out instructions, and interact with general public were adequately reflected in RFC limiting claimant to understanding, remembering, and following simple, repetitive instructions for one and two step tasks); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (finding that a claimant with "a marked limitation in her ability to maintain concentration over extended periods" would be capable of performing simple, unskilled tasks).
Having concluded that marked limitations in concentration and pace can be incorporated into certain work limitations, the Court must decide whether the work limitations set out by the ALJ did so in this case. Relevant here, the ALJ's RFC finding included limitations to (i) "simple, routine, and repetitive work tasks, involving simple one- and two-step work instructions;" (ii) performed in "a routine, predictable, and low[-]stress work environment;" (iii) with only "occasional contact with supervisors and coworkers" and "minimal to no contact with the public." AR at 19. These significant limitations appear to the Court to adequately reflect Plaintiff's limitations on pace and concentration as found by the ALJ.
iii. Plaintiff's limitation in completing a normal workday/workweek without interruptions from psychologically based symptoms
Finally, Plaintiff argues that the ALJ erred by failing to incorporate Plaintiff's marked limitation in her "ability to complete a normal workday/workweek without interruptions from psychologically based symptoms." Doc. 20 at 12. In her mental RFC assessment of Plaintiff, Ms. Pollem found that Plaintiff was markedly limited in this area. AR at 894. This finding is located under the heading of "sustained concentration and persistence." AR at 894. Therefore, the ALJ adopted this marked limitation by finding that Ms. Pollem's descriptions of Plaintiff's "limitations within the concentration, persistence, and pace functional area match up clearly with other observations and evidence from the record." AR at 25.
However, as discussed above, the Tenth Circuit in Smith found that a moderate limitation in the "ability to complete a normal workday or workweek without interruption [from] psychologically based [symptoms]" can also be incorporated into an RFC by limiting a claimant to simple, repetitive, and routine tasks with limited contact with the public. 821 F.3d at 1268-69; see also Foy v. Barnhart, 139 F. App'x 39, 44 (10th Cir. 2005) (unpublished); Harris v. Astrue, No. 11-CV-567-PJC, 2012 WL 6552786, at *12 (N.D. Okla. Dec. 14, 2012). Under the rationale of Nelson, even a marked limitation in Plaintiff's mental abilities can be incorporated into such an RFC. Nelson, 655 F. App'x at 629. Certainly, Plaintiff has cited to no case law supporting her position that an RFC limiting Plaintiff to simple work involving minimal to no contact with the public would be insufficient to incorporate a marked limitation in completing a normal workday/workweek without interruptions. See generally doc. 20 at 12-13. Therefore, the Court finds that the ALJ properly incorporated this marked limitation into Plaintiff's RFC.
VI. CONCLUSION
Plaintiff has failed to establish that the ALJ committed reversible error. Accordingly, Plaintiff's Motion to Remand to the SSA for Rehearing (doc. 19) is DENIED, and this action is DISMISSED with prejudice.
IT IS SO ORDERED.
/s/_________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
Presiding by consent