Opinion
CIV-19-713-PRW
05-07-2020
DOUGLASS WAYNE SPEARS, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Douglass Wayne Spears (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not “disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Patrick R. Wyrick has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). Doc. 17.
Plaintiff maintains the Administrative Law Judge erred in considering Plaintiff's impairments, medical opinions, Plaintiff's alleged symptoms, and the jobs Plaintiff could perform. After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the Court affirm the Commissioner's decision. See 42 U.S.C. § 405(g).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record will refer to its original pagination.
I. Administrative determination.
A. Disability standard.
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.” Id. § 423(d)(1)(A). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king] a prima facie showing that he can no longer engage in his prior work activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. ALJ's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 15-28; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since September 23, 2016, the alleged onset date;
(2) had the severe impairments of cerebrovascular accident, traumatic brain injury, coronary artery disease, neurocognitive disorder, adjustment disorder with features of anxiety, anxiety disorder, and a history of substance abuse;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity (RFC) for light work with additional restrictions;
(5) was unable to perform any past relevant work, but could perform jobs that exist in significant numbers in the national economy, such as merchandise marker, routing clerk, and labeler/marker; and thus
(6) was not disabled.AR 17-28.
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The Court reviews the Commissioner's final decision to determine “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (internal quotation marks and citation omitted)). A decision is not based on substantial evidence “if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issues for judicial review.
Plaintiff asserts the ALJ erred by not properly considering his early paraseptal emphysema and restless leg syndrome, not properly analyzing three medical opinions, not correctly analyzing his symptoms, and determining he could perform the job of merchandise marker. Doc. 16, at 3-15.
III. Analysis.
A. Consideration of Plaintiff's impairments.
Plaintiff contends the ALJ erred by failing to consider Plaintiff's early paraseptal emphysema and restless leg syndrome. Id. at 4-5. In support, he cites a radiology report from a September 26, 2016 CT scan, which noted Plaintiff had early patchy paraseptal emphysema. Id. at 4 (citing AR 368). He also cites the report of Dr. Suzan B. Simmons, Ph.D., a consultative examiner, who listed restless leg syndrome in the diagnostic impression section of her report. Id. at 5 (citing AR 394).
The ALJ did not list paraseptal emphysema or restless leg syndrome as severe impairments at Step Two. AR 17. But even if either condition amounted to a severe impairment, the ALJ did not commit reversible error because she determined Plaintiff had other severe impairments and proceeded to make determinations at step three and evaluate the RFC. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error [at step two] became harmless when the ALJ reached the proper conclusion that [the claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence.”).
The ALJ did not err at later steps of the decision. Although the ALJ referenced early patchy paraseptal emphysema in the decision, AR 22, Plaintiff contends he cannot perform light work because of his related symptoms-being short of breath and limited in his ability walk, climb stairs, and stand. Doc. 16, at 4. But the ALJ considered Plaintiff's alleged limitations. AR 21 (noting Plaintiff's testimony of getting winded easily and physical difficulty with standing, walking, and climbing stairs). The ALJ accounted for Plaintiff's alleged limitations in climbing stairs by limiting him to only occasional climbing of stairs. Id. at 20. Thus, Plaintiff's argument amounts to a request to reweigh the evidence, which the Court cannot do. See Newbold, 718 F.3d at 1262.
The ALJ did not specifically reference Plaintiff's restless leg syndrome. But it is the resultant functional limitations arising from a condition, if any, that the Commissioner must use to formulate Plaintiff's RFC. See 20 C.F.R. § 404.1545(a) (“Your residual functional capacity is the most you can do despite your limitations.”). “Diagnosis of a condition does not automatically mean that the claimant is disabled; what matters is whether the condition results in work-related limitations.” Paulsen v. Colvin, 665 Fed.Appx. 660, 668 (10th Cir. 2016) (citing Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988)). Dr. Simmons noted restless leg syndrome in the medical history and impressions section of her report and stated that Plaintiff was recently prescribed an unknown medication for the condition. AR 391, 394. In his brief, Plaintiff contends the impairment keeps him up at night, “is at least part of the reason he naps two or three times a day, ” and contributes to his fatigue. Doc. 16, at 5. Dr. Simmons' report belies Plaintiff's allegations of functional limitations, as she noted that since he was “prescribed medication for restless leg syndrome, he is asleep within 30 minutes and sleeps well. He sleeps 8-10 hours. . . . He feels rested when he awakens.” AR 391-92.
The ALJ acknowledged Plaintiff's testimony about having fatigue and taking multiple naps per day. AR 21.
Because Plaintiff did not identify any functional limitations assessed by Dr. Simmons or any other provider related to his restless leg syndrome, the ALJ committed no legal error. See Fulton v. Colvin, 631 Fed.Appx. 498, 501 (10th Cir. 2015) (where a treating physician diagnosed a condition but did not opine on the functional limitations imposed by the condition and claimant does not allege the condition is of listing-level severity, “the diagnos[i]s by [it]sel[f is] not significantly probative evidence the ALJ had to reject in order to find [the claimant] was not disabled, and therefore the ALJ did not need to discuss [it]”).
B. Opinion evidence.
1. Relevant law.
“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The applicable regulations governing the consideration of medical opinions distinguish between “treating” physicians, “examining” physicians, and “nonexamining” (or “consulting”) physicians. See Id. § 404.1527(c). For an ALJ to evaluate and assign weight to a medical opinion, the issuing physician must provide “judgment” about the nature and severity of a claimant's limitations or “information” about the activities he or she could still perform despite these limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008).
An ALJ must “give consideration to all the medical opinions in the record [and] discuss the weight [s]he assigns to such opinions.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). The opinions of examining consultants generally receive less weight than a treating physician's opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Even so, an ALJ must properly consider their opinions and provide legitimate reasons for discounting them. See 20 C.F.R. § 404.1527(c). The ALJ should consider:
(1) [T]he length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Krauser, 638 F.3d at 1331. That said, so long as the ALJ provides a well-reasoned discussion, the failure to “explicitly discuss” all the factors “does not prevent [the] court from according [the ALJ's] decision meaningful review.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
2. Dr. Simmons' opinion.
Dr. Simmons examined Plaintiff on February 22, 2017. AR 390-94. She noted Plaintiff's performance on the WAIS-IV examination, which demonstrated his nonverbal reasoning abilities were in the high-average range and his verbal reasoning abilities and ability to remember verbal and nonverbal information were in the low-average range. Id. at 394. In the examination, Plaintiff “demonstrated the ability to understand and immediately follow simple instructions, ” but Dr. Simmons noted that Plaintiff “may need to use compensatory methods to remember new information needed in an employment situation.” Id. Dr. Simmons also opined that “[w]ith routine and practice it is perceived that [Plaintiff] will be able to remember simple instructions.” Id.
The ALJ noted Dr. Simmons' findings regarding Plaintiff's ability to understand and immediately follow simple instructions, his possible need to use compensatory methods to remember new information needed in an employment situation, and that he will be able to remember simple instructions with routine and practice. Id. at 25. The ALJ then weighed the opinion:
I give Dr. Simmons' opinion substantial weight as it is consistent with the record. Hospital discharge notes indicated [Plaintiff] had difficulty making new memories and his immediate recall had been slower to recover. [Plaintiff] had an average IQ score and he scored in the low average range of verbal comprehension and the high average range for perceptual reasoning. However, [Plaintiff] had normal thought process and a normal thought content. [Plaintiff] had normal judgment and fair insight. For the aforementioned reasons, I give Dr. Simmons' opinion substantial weight.Id. (internal citations omitted).
Plaintiff argues that if the ALJ “had truly granted this weight to all of Dr. Simmons' opinions, she would have found [Plaintiff] disabled.” Doc. 16, at 7. Plaintiff contends the ALJ ignored Dr. Simmons' opinions that Plaintiff may need to use compensatory methods to remember new information in an employment situation and that he would be able to remember simple instructions with routine and practice. Id. at 9 (citing AR 394). He asserts his lack of focus, attention, and energy are such that he cannot perform or sustain competitive work. Id. at 7; see also Doc. 24, at 5 (arguing that Dr. Simmons' opinion that Plaintiff could remember simple instructions with routine and practice “indicates he could not perform competitive work”).
Plaintiff further argues that he cannot receive spoken instructions, must be off work at least two days a month, must be off task more than twenty percent of the workday, and receive two additional fifteen-minute breaks per day. Doc. 16, at 10. Plaintiff, however, cites no portion of the record in support of such limitations. Dr. Simmons did not use such language when opining on Plaintiff's abilities.
Plaintiff concedes the ALJ noted Dr. Simmons' opinions and findings, but he argues the ALJ did not properly account for them. Doc. 16, at 6-7. The undersigned disagrees. The ALJ limited Plaintiff to simple, routine, and repetitive tasks with no strict production requirements, only occasional changes in the work setting, only occasional superficial contact with coworkers and supervisors, and no contact with the public. AR 20. The RFC is consistent with Dr. Simmons' findings. For example, limiting Plaintiff to simple, routine, and repetitive tasks accommodates Dr. Simmons' opinion that he would be able to remember simple instructions with routine and practice. Those limitations-along with limiting Plaintiff to only occasional changes in the work setting-accommodates Plaintiff's potential need to use compensatory methods to remember new information.
Plaintiff argues that “Dr. Simmons . . . indicated [he] would need special accommodation to perform” jobs requiring a reasoning level of two. Id. at 9-10. Because the undersigned finds that the ALJ properly incorporated Dr. Simmons' opinions in the RFC, these arguments lack merit as the RFC is consistent with a reasoning level of two. See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (stating that a limitation to simple and routine work tasks “appears more consistent” with a reasoning level of two than with a reasoning level of three); see also Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008) (holding that a limitation to simple, repetitive work was “consistent with the demands of level-two reasoning”); Forssell v. Berryhill, 2018 WL 6440882, at *8 (W.D. Okla. Dec. 7, 2018) (finding Plaintiff's limitations of “performing simple, routine, and repetitive tasks” did not “inherently conflict with reasoning level two”).
3. State agency psychological consultants' opinions.
The state agency psychological consultants, Dr. Mary Rolison, Ph.D. and Dr. Randy Cochran, Psy.D., found that Plaintiff could perform simple tasks with routine supervision, interact appropriately with coworkers and supervisors for incidental work purposes, should avoid all contact with the public, and could adapt to a routine work setting. Id. at 69, 87. In analyzing these opinions, the ALJ stated:
I give Dr. Rolison's and Dr. Cochran's opinions substantial weight as they are supported by the record. The medical evidence supports that [Plaintiff] suffers from adjustment disorder with features of anxiety, anxiety disorder and a neurocognitive disorder. [Plaintiff] reported having anxiety around large crowds. He reported his symptoms included difficulty breathing, chest pressure and increased heart rate. Hospital discharge notes indicated [Plaintiff] had difficulty making new memories and his immediate recall had been slower to recover. [Plaintiff] had an average IQ score and he scored in the low average range of verbal comprehension and the high average range for perceptual reasoning. However, [Plaintiff] had normal thought process and a normal thought content. [Plaintiff] had normal judgment and fair insight. For the aforementioned reasons, I give Dr. Rolison's and Dr. Cochran's opinions substantial weight.Id. at 25 (internal citations omitted).
Plaintiff contends the consultants “failed to adequately and fairly consider the opinions of [Dr. Simmons].” Doc. 16, at 6. Specifically, Plaintiff asserts the consultants did not properly account for Dr. Simmons' findings regarding lowered memory ability, short attention span, fair insight, difficulty with focus, and that he would need practice to follow simple instructions. Id. Plaintiff argues that “[b]ecause the [consultants] erred in minimizing and ignoring probative evidence that is favorable to [Plaintiff], the ALJ's decision is not properly supported.” Id. at 7.
The undersigned finds that the state agency consultants' opinions- incorporated into the RFC-are not inconsistent with Dr. Simmons' opinion. As addressed above, Dr. Simmons' opinion is not inconsistent with the RFC. The ALJ satisfied her duty in weighing the state agency consultants' opinions by noting that the record supports them and citing portions of the medical record to support her finding. So, the ALJ did not err in weighing the state agency consultants' opinions.
C. Symptom analysis.
Plaintiff asserts the ALJ erred in analyzing whether his alleged symptoms were consistent with the record. He contends the ALJ improperly used “disfavored, boilerplate language, ” was vague, and her finding amounted to a conclusion in the guise of findings. Doc. 16, at 11. Plaintiff asserts his symptoms were inconsistent with the RFC. He also contends the ALJ misrepresented his activities of daily living and ignored the opinion of a state agency employee who observed his behavior through a telephone interview.
Plaintiff also argues the ALJ ignored Plaintiff's reported side effects- dizziness, drowsiness, and upset stomach-which he and his wife listed in function reports. Id. at 15 (citing AR 247, 263). The ALJ did not specifically reference Plaintiff's side effects, but she did address those alleged limitations by referencing Plaintiff's allegations of dizziness, fatigue, and taking multiple naps per day. AR 21. And although the ALJ did not specifically discuss that Plaintiff's wife reported Plaintiff had an upset stomach because of his medication, id. at 263, Plaintiff does not argue he has any functional limitations as a result of his upset stomach. Plaintiff also appears to argue that the ALJ's other errors meant that she “could not have fairly considered” Plaintiff's symptoms. Doc. 16, at 12. But, the undersigned does not find Plaintiff's other points of error meritorious.
“Credibility determinations are peculiarly within the province of the finder of fact, and [courts] will not upset such determinations when supported by substantial evidence.” Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). These findings must, however, “be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (quotations and alteration omitted). Factors relevant to the credibility determination include the claimant's
medication[s] and their effectiveness, [] extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of [the claimant's] medical contacts, the nature of [the claimant's] daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, . . . and the consistency or compatibility of nonmedical testimony with objective medical evidence.Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted). See also 20 C.F.R. § 404.1529(c)(3) (listing the other factors relevant to symptoms an ALJ may consider); SSR 16-3p, 2017 WL 5180304, at *7-8 (Oct. 25, 2017).
1. The ALJ's symptom analysis was not boilerplate.
Plaintiff's claim that the ALJ used boilerplate language lacks merit. He argues the ALJ used boilerplate language when “she found [Plaintiff's] impairments could reasonably be expected to cause the alleged symptoms but that his statements about the ‘intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.'” Doc. 16, at 11 (quoting AR 21). But the quoted sentence amounts to a small portion of the ALJ's analysis. First, the ALJ cited medical evidence from the record which arguably supported Plaintiffs allegations. AR 21-22. The ALJ next noted that “other evidence is inconsistent with [Plaintiffs] allegations of disabling symptoms” and cited particular evidence showing the improvement of Plaintiffs physical symptoms. Id. at 22-23. Later in the decision, the ALJ again noted that “other evidence is inconsistent with [Plaintiffs] allegations of disabling symptoms” and cited medical evidence related to Plaintiffs mental impairments. Id. at 23. The ALJ also cited activities of daily living and noted that Plaintiffs “ability to participate in such activities was inconsistent with his allegations of severe functional limitations.” Id. The ALJs analysis was tailored to the evidence, and her finding that Plaintiffs symptoms were not as limiting as Plaintiff suggested did not amount to boilerplate or vague analysis.
2. Substantial evidence supports the ALJ's analysis.
Plaintiff also contends his symptoms are inconsistent with the RFC. Doc. 16, at 12. Without citing the record, Plaintiff contends he:
. Does not drive because he forgets where he is going;
. Needs reminders to go places and about his personal care and medication;
. Has concentration difficulties because of short-term memory;
. Forgets spoken instructions;
. Avoids stressful situations and direct contact with others; and
. Has difficulty with authority figures.Id. The ALJ specifically referenced Plaintiffs report that he needs help remembering to take his medication and perform personal care activities and that he has poor short-term memory. AR 19. The ALJ also more generally referenced Plaintiffs reports that he has difficulty getting along with others, difficulty with focus and attention span, poor short-term memory, difficulty remembering, completing tasks, concentrating, understanding, and following instructions. Id. at 19, 21, 23. Thus, the ALJ formulated the RFC after fairly considering the limitations Plaintiff addresses in his brief. While Plaintiff contends his symptoms are more limiting, the Court cannot reweigh the evidence. See Newbold, 718 F.3d at 1262.
3. The ALJ fairly analyzed Plaintiffs activities of daily living.
Plaintiff also contends his activities of daily living were not as substantial as the ALJ insinuated. Doc. 16, at 13.
The ALJ found:
Despite his combination of alleged impairments, [Plaintiff] engaged in a somewhat normal level of daily activity and interaction. [Plaintiff] admitted to activities of daily living including house cleaning, caring for his minor children, doing laundry, washing dishes, going to the grocery store, performing self-care activities such as dressing and bathing and socializing with others.
AR 23 (internal citation omitted). Plaintiff argues:
He actually testified he gets his children ready for school, “might do some dishes or a little laundry” and then takes a nap for an hour to two hours. Then he watches TV and will “maybe sweep the floor or something, take a nap again until the kids get home . . . .” [He] tries not to leave home. In the evenings, he makes sure homework is done, and gets the children ready for bed. The children are 11 and 12.Doc. 16, at 13 (internal citations omitted). Plaintiff's summary of his testimony is not substantially different from the ALJ's summary. Although the ALJ did not reference Plaintiff's naps or desire to stay home in the excerpt above, she considered this testimony earlier in the decision. AR 21. And the record supports the ALJ's notation that Plaintiff did laundry, the dishes, and went to the grocery store. See Id. at 40, 242. The ALJ did not err in her consideration of Plaintiff's daily activities.
Plaintiff also contends “the performance of household tasks or caring for children does not establish a person is capable of engaging in substantial gainful activity.” Doc. 16, at 13 (citing Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993)). In Thompson, the court held that “sporadic” performance of household tasks does not establish a person can engage in substantial gainful activity. 987 F.2d at 1490. Here, the ALJ cited more than sporadic household activity and the record supports such a finding.
4. The ALJ's failure to address the state agency interviewer's observations of Plaintiff did not amount to reversible error.
In a December 23, 2016 interview with Plaintiff, the state agency's interviewer noted that Plaintiff had difficulty in the areas of understanding, coherency, concentrating, talking, and answering. Id. at 223. The interviewer also stated: “[Plaintiff] struggled during the interview to answer questions. His wife had to answer most all questions for him.” Id. Plaintiff contends the ALJ improperly ignored these notations. Doc. 16, at 14.
The Commissioner argues that the ALJ did not have to reference every piece of evidence in the record. Doc. 23, at 8 (citing Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010)). He further notes that “the ALJ discussed substantial evidence in the record showing that Plaintiff had a number of largely normal mental status examinations, scored in the low- to high-average range on objective testing, and had a full-scale IQ in the average range.” Id. (citing AR 23).
An ALJ must “consider any statements in the record noted by [SSA] personnel who previously interviewed the individual, whether in person or by telephone.” SSR 16-3p, 2017 WL 5180304, at *7; Parker v. Comm'r of Soc. Sec. Admin., 2017 WL 7688083, at *6 (W.D. Okla. Dec. 11, 2017) (Commissioner argued the ALJ is “required” to consider such evidence), adopted, 2018 WL 837605 (W.D. Okla. Feb. 12, 2018); see 20 C.F.R. § 404.1529(c)(3) (The agency “will consider all of the evidence presented, including . . . observations by our employees.”).
So, the Commissioner may not ignore his own regulations and rulings, but he is correct to argue the ALJ does not have to discuss each piece of evidence in the decision. The record must show the ALJ considered all of the evidence. 20 C.F.R. § 404.1529(c)(3). The ALJ “must discuss the uncontroverted evidence [she] chooses not to rely upon, as well as significantly probative evidence [she] rejects.” See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Here, the state agency interviewer's notes do not amount to evidence the ALJ was required to discuss.
The state agency interviewer did not identify the degree of difficulty he or she believed Plaintiff had in the areas of understanding, coherency, concentrating, talking, and answering. That Plaintiff was limited in those areas is consistent with the decision, as the ALJ found Plaintiff had moderate limitations in his ability to understand, remember, or apply information; interacting with others, and concentrating, persisting, or maintaining pace. AR 18-19. The RFC accounts for such deficiencies by limiting Plaintiff to simple, routine, and repetitive tasks with no strict production requirements, only occasional changes in the work setting, and only occasional superficial contact with coworkers and supervisors and no contact with the public. Id. at 20; see also Id. (ALJ “consider[ed] . . . entire record”); Wall, 561 F.3d at 1070 (“Where, as here, the ALJ indicates [s]he has considered all the evidence [the court] take[s] the ALJ at h[er] word.”) (internal quotation marks omitted). So even if the ALJ erred, any error is harmless. See Baker v. Saul, 2020 WL 798436, at *3 (W.D. Okla. Feb. 18, 2020) (finding harmless error where “the RFC incorporated limitations addressing the difficulties the SSA employee noted”).
D. Any error at Step Five is harmless.
The Dictionary of Occupational Titles (DOT) entry for merchandise marker conveys the job requires “attaining precise set limits, tolerances, and standards.” DOT 209.587-034, 1991 WL 671802. Plaintiff argues he cannot perform the job of merchandise marker because it requires “precise tolerances.” Doc. 16, at 10. He alleges that because he had a severe brain injury, “common sense” dictates he does not have the mental ability to ensure precise tolerances in work tasks. Id. at 10-11.
In his opening brief, Plaintiff neither cites authority addressing precise tolerance nor explains what precise tolerances are.
In the response brief, the Commissioner cites a recent case from the Central District of California, in which the plaintiff argued the marker's requirement of attaining precise set limits, tolerances, or standards conflicted with his RFC, which required “routine” work. Ryan v. Berryhill, 2019 WL 1383800, at *6 (C.D. Cal. Mar. 27, 2019). The court determined “there is no obvious or apparent conflict between a limitation to ‘routine' tasks and having the temperament to attain precise set limits, tolerances, and standards; rather, that language would conflict with an RFC barring fast-paced or production-quota work, which [the plaintiff] does not have.” Id. (internal citation omitted). The court found that the language requiring precise tolerances should be read in conjunction with the job's requirement of level-two reasoning, which requires only uninvolved instructions. Id. As a result, the court found the plaintiff could perform the job of marker.
In his reply brief, Plaintiff cites a recent case from the Northern District of Indiana, which found a job requiring precise tolerances was inconsistent with an RFC allowing for end-of-day quotas. Sara A. v. Saul, 2019 WL 6606861, at *24 (N.D. Ind. Dec. 5, 2019).
Unlike Ryan, the RFC here bars production-quota work. See AR 20 (“The claimant is limited to simple, routine and repetitive tasks with no strict production requirements.”). Thus, it is possible that there is a conflict between the DOT and the vocational expert's (VE) testimony. The Court need not decide the issue, however, because if the ALJ erred in finding Plaintiff could perform the merchandise marker job, such error is harmless.
The other two jobs the VE identified, routing clerk and labeler/marker, combine for 77, 000 jobs nationally. AR 27. Thus, the Court finds there were still a significant number of available jobs. See Washington v. Saul, 2019 WL 4080925, at *4 (D. Kan. Aug. 29, 2019) (finding harmless error because “[t]here is no doubt that 53, 000 is a significant number of available jobs”); Sly v. Berryhill, 2018 WL 1954836, at *3 (W.D. Okla. Apr. 25, 2018) (finding harmless error where “the Court has no difficulty concluding that 32, 000 jobs is a significant number for purposes of step 5 of the sequential process”); Breslin v. Colvin, 2016 WL 5408126, at *4 (E.D. Okla. Sept. 28, 2016) (“Here there is no need for reversal because the Court is persuaded that 54, 000 jobs available nationally for the conveyor line baker worker is significant.”); Fox v. Colvin, 2015 WL 5178414, at *4 (W.D. Okla. Sept. 3, 2015) (finding that “the ALJ's error in failing to reconcile the conflict between the DOT” and two of the “VE's recommended positions . . . was harmless” where there were 32, 000 jobs available in the national economy in one position).
Because the Court finds there are a significant number of routing clerk and labeler/marker jobs in the national economy, any error is harmless.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends the Court affirm the Commissioner's decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 28th day of May, 2020, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.