United States District Court, W.D. Oklahoma
MIKKI J. SIMON, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE
brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff's
application for disability insurance benefits (DIB) and
supplemental security income (SSI) under the Social Security
Act. The Commissioner has answered and filed a transcript of
the administrative record (ECF No. 14) (TR.). Both parties to
the proceedings have consented to the exercise of
jurisdiction by a United States Magistrate Judge to order the
entry of a final judgment. Upon review of the pleadings, the
record, and the parties' briefs, the Commissioner's
decision is AFFIRMED.
filed her applications for DIB and SSI alleging disability
beginning October 3, 2011. (TR. 14). The applications were
denied on initial consideration and on reconsideration at the
administrative level. At Plaintiff's request, the
Administrative Law Judge (ALJ) held a de novo
hearing on June 19, 2014. (TR. 41-71). Plaintiff appeared
with a non-attorney representative and testified in support
of her application. A vocational expert (VE) also testified
at the request of the ALJ. The ALJ issued his decision on
September 17, 2014, finding that Plaintiff was not disabled.
(TR. 18-33). The Appeals Council denied Plaintiff's
request for review, and the decision of the ALJ became the
final decision of the Commissioner. (TR. 1-4). This judicial
THE ADMINISTRATIVE DECISION
addressing Plaintiff's applications, the ALJ followed the
five-step sequential evaluation process set forth in 20
C.F.R. §§ 404.1520; 416.920. At step one, the ALJ
determined Plaintiff had not engaged in substantial gainful
activity from her alleged onset date. (TR. 20). At step two,
the ALJ identified Plaintiff's severe impairments: major
depressive disorder; generalized anxiety disorder with
agoraphobia; post-traumatic stress disorder
(“PTSD”); Takotsubi cardiomyopathy; back pain;
methamphetamine abuse (in remission); and headaches. (TR.
20). At step three, the ALJ found that Plaintiff does not
have a physical or mental impairment or combination of
impairments that meets or equals any of the presumptively
disabling impairments listed in 20 C.F.R. Part 404, Subpart
P, App'x. 1 (TR. 21).
thorough discussion of the evidence in the record, the ALJ
assessed Plaintiff's residual functional capacity (RFC):
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that she is limited to performing simple tasks with
routine supervision; limited to just occasional contact with
co-workers and supervisors; would have no work-related
contact with the general public; and would need to avoid
concentrated exposure to fumes, dust and poorly ventilated
(TR. 24). The ALJ compared Plaintiff's past relevant work
to her RFC and determined she could not perform any of her
past jobs as motor vehicle assembler, sewing machine
operator, trailer assembler or sales clerk/cashier. (TR. 31).
five, the ALJ considered the testimony of the VE and
determined there were jobs existing in significant numbers in
the national economy that Plaintiff could perform including
Housekeeper/cleaner; Marker; and Laundry folder. (TR. 32).
Thus, at step five of the sequential evaluation, the ALJ
determined Plaintiff is not disabled.
related propositions (A and C), Plaintiff takes issue with
the ALJ's mental RFC. The first challenge is based on the
ALJ's alleged error in failing to incorporate his step
two and three findings-that Plaintiff has moderate
difficulties in maintaining concentration, persistence or
pace-directly into the RFC. (ECF No. 20:4-5). Additionally,
Plaintiff challenges the ALJ's failure to specifically
discuss written comments on the telephone application for
benefits regarding Plaintiff's ability to remember and
answer questions. (ECF No. 20:7-8).
also challenges the ALJ's physical RFC in two related
propositions (B and D). First, Plaintiff contends the
ALJ's failure to “perform a function-by-function
assessment” of her physical limitations at step four
constitutes reversible error. (ECF No. 20:5-7). Second,
Plaintiff asserts the physical RFC assessment that Plaintiff
can perform light work is insufficient because no medical
opinion specifically refers to her ability to do light work.
(ECF No. 20: 8-9).
proposition E, Plaintiff contends the ALJ did not sustain her
burden of proof at step five where he identified three jobs
Plaintiff could still do despite her impairments. Plaintiff
contends a reasoning level of 2, assigned by the authors of
the Dictionary of Occupational Titles (DOT) to two of the
three jobs identified at step five by the VE, is inconsistent
with the ALJ's conclusion that Plaintiff can do only
simple work. (ECF No. 20:9-10).
in proposition F, Plaintiff challenges the ALJ's
credibility determination as “unsupported by …
substantial evidence.” (ECF No. 20:10-13).
STANDARD OF REVIEW
Court reviews the Commissioner's final decision “to
determin[e] whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v. A
strue, 602 F.3d 1136, 1140 (10thCir. 2010).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quotation omitted).
asserts the ALJ's findings at steps two and three-that
Plaintiff had moderate difficulties maintaining
concentration, persistence, or pace-should have been
incorporated directly into the RFC. (ECF No. 20:4-5). But the
law on this issue is clearly settled: findings made in
consideration of the Paragraph B criteria included in the
Listing of Impairments for mental disorders, in this case
Listings 12.04 and 12.06, are not an RFC
determination. See Social Security Ruling (SSR)
96-8p, 1996 WL 374184, at *4 (July 2, 1996) (“The
adjudicator must remember that the limitations identified in
the ‘paragraph B' ... criteria 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
steps two and three of the sequential analysis, the ALJ
determines whether the claimant has a severe impairment (step
2) and whether the impairment meets or equals an impairment
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (step 3). Here,
the ALJ found at step three of the sequential process of
evaluation that Plaintiff had only a moderate-not
marked-limitation of concentration, persistence and pace.
(TR. 23). Listings 12.04, 12.06, paragraph B. “The
ALJ's finding of a moderate limitation in concentration,
persistence, or pace at step three does not necessarily
translate to a work-related functional limitation for the
purposes of the RFC ...