United States District Court, D. New Mexico
December 29, 2016
MARY LOUISE MONTOYA, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
GREGORY J. FOURATT UNITED ST'ATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand to Agency for Rehearing, With
Supporting Memorandum” (“Motion”), filed on
August 5, 2016. ECF No. 24. The Commissioner responded on
October 7, 2016. ECF No. 25. Plaintiff replied on October 21,
2016. ECF No. 26. Having meticulously reviewed the entire
record and the parties' pleadings, the Court finds that
Plaintiff's Motion is not well taken and that the
Administrative Law Judge's
(“ALJ's”)'s ruling should be
AFFIRMED. Therefore, and for the following
reasons, the Court will DENY Plaintiff's
was born on February 6, 1962, in Albuquerque, New Mexico.
Administrative R. (“AR”) 201-02. She graduated
from high school and obtained additional vocational training
as a nurse's assistant, phlebotomist, and teacher's
assistant. AR 239. In the last fifteen years, she reported
working as both a clerk and an educational assistant. AR 240.
As a clerk, she assisted individuals with completing food
stamp applications, did computer checks to verify their
qualifications for food assistance, handled filing, and
engaged in miscellaneous office work. AR 254. As a teaching
assistant, she spent her time entirely in the classroom
assisting with the instruction of students. AR 255.
filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) alleging disability beginning on July 1,
2012, due to fibromyalgia, back pain, and depression. AR 87.
The Social Security Administration (“SSA”) denied
Plaintiff's application initially on January 25, 2013,
and upon reconsideration on May 9, 2013. AR 87-98, 125-36. At
her request, Plaintiff received a de novo hearing
before ALJ Ann Farris on March 25, 2014, at which Plaintiff,
her non-attorney representative, and a vocational expert
(“VE”) appeared. AR 61-84. On September 26, 2014,
the ALJ issued her decision, finding that Plaintiff was not
disabled within the meaning of the Social Security Act
(“the Act”). AR 42-56. Plaintiff submitted
additional medical evidence to the SSA Appeals Council, but
it declined review on January 11, 2016. AR 8-33. As a
consequence, the ALJ's decision became the final decision
of the Commissioner. 20 C.F.R. § 422.210(a) (2016).
timely filed her appeal with the U.S. District Court on
February 18, 2016. ECF No. 1.
advances three grounds for relief. First, she argues that the
ALJ failed to develop the record. Pl.'s Mot. 8-9, ECF No.
24. Next, she avers that the ALJ failed to properly weigh the
opinion of three different health providers. Id. at
10-14. Lastly, she contends the ALJ's “step
five” decision is not supported by substantial
evidence. Id. at 14-17.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision is both factual and legal. See Maes v.
Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec'y of Health & Human Servs.,
961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”)
factual findings at the administrative level are conclusive
“if supported by substantial evidence.” 42 U.S.C.
§ 405(g) (2012). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003). An ALJ's decision “is not based on
substantial evidence if it is overwhelmed by other evidence
in the record or if there is a mere scintilla of evidence
supporting it.” Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. Substantial evidence does
not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
the review of the ALJ's legal decisions, the Court
reviews “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
if substantial evidence supports the ALJ's findings and
the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2016). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App'x 1. If a claimant's impairments
are not equal to one of those in the Listing of Impairments,
then the ALJ proceeds to the first of three phases of step
four and determines the claimant's residual functional
capacity (“RFC”). See Winfrey, 92 F.3d
at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In
phase two, the ALJ determines the physical and mental demands
of the claimant's past relevant work, and in the third
phase, compares the claimant's RFC with the functional
requirements of her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f). The claimant bears the
burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482
U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d
1456, 1460 (10th Cir. 1987).
claimant cannot return to her past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is capable of performing other jobs
existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also
Williams v. Bowen, 844 F.2d 748, 750-51 (10th
Cir. 1988) (discussing the five-step sequential evaluation
process in detail).
THE ALJ'S DECISION
issued her decision on September 26, 2014. AR 56. At step
one, she found that Plaintiff had not engaged in substantial
gainful activity since the alleged disability onset date of
July 1, 2012. AR 44. Although Plaintiff worked for
sixty-eight (68) days as a lunch server in the summer of
2013, the ALJ found the endeavor to be an “unsuccessful
work attempt” and proceeded to step two. AR 44. There,
she found that Plaintiff suffered from the following severe
impairments: (1) somatoform disorder; (2) major depressive
disorder; and (3) fibromyalgia. AR 44. In tandem with these
findings, the ALJ also found Plaintiff's dyshydrotic
eczema and anxiety to be non-severe and provided her
rationale for finding them so. AR 44-47.
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 47-49. This finding included
an analysis of Plaintiff's mental impairments, which the
ALJ found did “not meet or medically equal the criteria
of Listing Sections 12.04 (affective disorders) and/or 12.07
(somatoform disorders).” AR 47-49.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 49-54. “After careful
consideration of the record, ” the ALJ determined that
“[Plaintiff] has the residual functional capacity to
perform light work. [Plaintiff] can frequently handle and
finger. [Plaintiff] can make simple decisions with few
workplace changes.” AR 49. In reaching this conclusion,
the ALJ accorded great weight to the “State
agency” and its “non-treating, non-examining
medical sources, ” who uniformly opined:
[Plaintiff] is limited to lifting 10 pounds frequently and 20
pounds occasionally. Standing and walking can be performed
for up to six hours a day. Work can be performed where
interpersonal contact is routine but superficial. Tasks
should be no more complex than those learned by experience,
with several variables and judgment within limits.
Supervision required is little for routine tasks but detailed
AR 54. The ALJ found “these opinions [to be] internally
consistent and well supported by a reasonable explanation and
the available evidence.” AR 54. Additionally, the ALJ
assigned “some weight” to Dr. Paula Hughson, a
consultative psychiatric examiner. AR 54. See AR
370-74. Following her examination, Dr. Hughson assigned
Plaintiff a Global Assessment of Functioning
(“GAF”) score of fifty-five (55), which indicates
“moderate symptoms and a moderate difficulty in social,
occupational, or school functioning.” AR 54.
Furthermore, she opined that Plaintiff possessed multiple,
mild mental limitations and one moderate limitation in her
“ability to carry out instructions.” AR 54,
370-74. The ALJ concurred with Dr. Hughson's conclusions,
giving weight to the GAF score only “in relation to
[Plaintiff's] concentration, ” and finding
“that all other facets of [Plaintiff's]
psychological impairments are mild.” AR 54. Lastly, the
ALJ ascribed “little weight” to certified nurse
practitioner Myrna Gallegos, because Ms. Gallegos is not a
doctor, her opinion “is vague as to what amount
[Plaintiff] can lift, carry, push and or pull, ” and
her opinion “is not consistent with the overall medical
record or the above residual functional capacity.” AR
four, the ALJ found that Plaintiff could not perform any past
relevant work, based on the VE's testimony that Plaintiff
“would not be able to perform all of the requirements
of her past work given the limitations of her residual
functional capacity.” AR 55. Accordingly, the ALJ
proceeded to step five. Based on Plaintiff's age,
education, work experience, and RFC, the ALJ found that
Plaintiff could perform other jobs that exist in significant
numbers in the national economy. AR 55-56. These jobs, as
described by the VE, Ms. M. Diane Weber, included retail
counter clerk, garment bagger, and office helper. AR 55-56.
Finally, the ALJ found that Plaintiff had not been under a
disability, as defined by the Act, during the relevant time
period and she denied the claim. AR 56.
forth below, Plaintiff fails to marshal sufficient support
from facts or case law to establish that the ALJ applied
incorrect legal standards or that her decision is unsupported
by substantial evidence. Consequently, her Motion must be
denied. The Court's reasoning as to each of
Plaintiff's three claims will be discussed
The ALJ Adequately Developed the Record
first ground for remand, Plaintiff contends that the ALJ
failed in her duty to develop the record. Pl.'s Mot. 8-10
(citing Thompson v. Sullivan, 987 F.2d 1482, 1492
(10th Cir. 1993); Haddock v. Apfel, 196 F.3d 1084,
1091 (10th Cir. 1999)). She reasons that during her direct
examination, “she revealed she had been getting trigger
point injections with Dr. Cisneros at First Choice.”
Id. at 8 (citing AR 72). Accordingly, the ALJ urged
Plaintiff's representative to transmit the records to her
both during Plaintiff's direct examination and at the
conclusion of the hearing. Id. (citing AR 72-73,
82-83). Yet, Plaintiff opines, “[t]here are no records
from Dr. Cisneros or First Choice in the record.”
Id. (citation omitted).
Commissioner responds that “[a]n ALJ's duty to
develop the record is not unqualified.” Def.'s
Resp. 11, ECF No. 25 (citing Wall v. Astrue, 561
F.3d 1048, 1063 (10th Cir. 2009)). She explains that
“[w]hile the agency is obligated to develop a
claimant's complete medical history for at least the 12
months preceding her application for disability benefits, 20
C.F.R. § 404.1512(d), it is the claimant who holds the
burden to furnish the agency sufficient medical evidence to
support her allegations of disability.” Id. at
9 (citing 42 U.S.C. § 423(d)(5)(A)). Turning to the
proceeding itself, the Commissioner recounts that the ALJ
twice requested the Dr. Cisneros records from Plaintiff's
representative and even agreed to review them, once
submitted, before rendering her opinion. Id. at 10.
Only after allowing Plaintiff's case to remain pending
for six months while awaiting the records -- and yet never
receiving them -- did the ALJ ultimately issue her
unfavorable decision. Id. The Commissioner notes
that even after hiring her present counsel of record,
Plaintiff has never submitted the Dr. Cisneros records to the
SSA. Id. at 11. Alternatively, the Commissioner
argues that treatment records from Dr. Cisneros would not
have influenced the ALJ's disability determination.
Id. at 10-11.
burden to prove disability in a social security case is on
the claimant, and to meet this burden, the claimant must
furnish medical and other evidence of the existence of the
disability.” Branum v. Barnhart, 385 F.3d
1268, 1271 (10th Cir. 2004). Nonetheless, “[t]he ALJ
has a basic obligation in every social security case to
ensure that an adequate record is developed during the
disability hearing consistent with the issues raised.”
Henrie v. U.S. Dep't of Health & Human
Servs., 13 F.3d 359, 360-61 (10th Cir. 1993) (citation
omitted). That duty, however, “is one of inquiry and
factual development. The claimant continues to bear the
ultimate burden of proving that she is disabled under the
regulations.” Westbrook v. Massanari, 26 F.
App'x 897, 903 (10th Cir. 2002) (unpublished) (citing
Henrie, 13 F.3d at 361).
Plaintiff clearly attempts to have it both ways. On the one
hand, Plaintiff pleads reversible error for the lack of
medical records that she contends would support a finding of
disability. On the other, neither her representative at the
administrative hearing nor her present counsel, in their
several combined years of representing Plaintiff, have ever
submitted these purportedly critical records for review.
Commissioner properly argues, in contrast to what Plaintiff
would have this Court find, that the ALJ's duty to
develop the record “is not absolute.”
See Def.'s Resp. 11 (citing Wall, 561
F.3d at 1063). Rather, “[t]he key inquiry is whether
the ALJ developed the record sufficiently to reflect the
nature of the claimant's impairments, the on-going
treatments and medications the claimant is receiving, and the
impact of the impairments on the claimant's daily
activities.” Sparks v. Chater, 107 F.3d 21
(10th Cir. 1997) (citing Thompson v. Sullivan, 987
F.2d 1482, 1492 (10th Cir. 1993)). In this case, the ALJ did
all these things. First, she developed the record
sufficiently to describe and evaluate each of Plaintiff's
impairments. See AR 44-54. Moreover, she
specifically mentioned Plaintiff's trigger point
injection treatment as part of that evaluation. See
AR 50. Most importantly, even without the Dr. Cisneros
records, she was able to competently analyze the minimal
impact of Plaintiff's impairments on her activities of
daily living. See AR 49-54.
Plaintiff's failure to produce the Dr. Cisneros records
cannot be attributed to the ALJ. The ALJ diligently sought
the records from Plaintiff, through her representative, and
held the record open to review them before rendering her
decision. To now fault the ALJ for not including the records
in her decision is tantamount to the scenario the Tenth
Circuit confronted in Maes v. Astrue, where the
court held that “[a]lthough the ALJ has the duty to
develop the record, such a duty does not permit a claimant,
through counsel, to rest on the record - indeed, to exhort
the ALJ that the case is ready for decision - and later fault
the ALJ for not performing a more exhaustive
investigation.” 522 F.3d 1093, 1097 (10th Cir. 2008).
Based on Maes, Plaintiff's failure to adduce the
records as requested now precludes her from claiming legal
error based on their omission from the ALJ's decision.
Therefore, this claim must be denied.
The ALJ Properly Evaluated Opinion Evidence from Medical
Plaintiff argues that the ALJ improperly evaluated the
opinions of three separate medical providers. For the reasons
detailed below, the Court will deny each of these claims.
Myrna M. Gallegos, Certified Nurse Practitioner
begin, Plaintiff alleges that “Nurse Gallegos's
opinions were improperly rejected.” Pl.'s Mot. 10.
Her argument is two-fold. First, she believes “[t]he
ALJ's reasoning for rejecting Nurse Gallegos's
opinion is contrary to the regulations and rulings, ”
and specifically, Social Security Ruling (“SSR”)
06-03p. Id. at 10-11. Additionally, she challenges
the ALJ's underlying rationale for rejecting Nurse
Gallegos's opinion, faulting the ALJ both for finding
Nurse Gallegos's opinion “vague as to what amount
[Plaintiff] can lift, carry, push and or pull, ” AR 54,
and for being “not consistent with the overall medical
record or the above residual functional capacity.”
Pl.'s Mot. 11-12.
Commissioner responds that the ALJ advanced “a
number” of permissible reasons for allocating Nurse
Gallegos's opinion little weight. Def.'s Resp. 13.
Furthermore, she contends that these reasons comport with the
provisions of SSR 06-03p. Id. The Commissioner
explains, “[the ALJ] reasonably noted that [Nurse
Gallegos's] opinion was vague, noting that it did not
provide limitations on what Plaintiff could lift, carry,
push, or pull.” Id. (citing AR 54). The
Commissioner then describes, through citations to the record,
how Nurse Gallegos's opinion concerning Plaintiff's
impairments conflicted with the medical records compiled by
Nurse Gallegos. Id. at 14. In so doing, the
Commissioner avers “the ALJ provided specific and
supportable reasons to place only little weight on Nurse
Gallegos's opinion.” Id.
06-03p was promulgated to resolve how the Social Security
Administration would consider opinions from sources who are
not “acceptable medical sources.” The Ruling
clarifies that the distinction between “acceptable
medical sources” and other health care providers is
important for three reasons: first, evidence from
“acceptable medical sources” is needed to
establish the existence of a medically determinable
impairment; second, only “acceptable medical
sources” can provide medical opinions; and third, only
“acceptable medical sources” can be considered
treating sources whose medical opinions may be entitled to
06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006). The Ruling
identifies nurse practitioners as “other sources”
whose evidence may be used “to show the severity of the
individual's impairment(s) and how it affects the
individual's ability to function.” Id. at
*2 Information from “other sources, ” however,
cannot establish the existence of an impairment. Id.
06-03p provides that the factors set forth in 20 C.F.R.
§§ 404.1527(d) and 416.927(d) (2016) can be applied
to opinion evidence from “other sources.”
Id. These factors include:
how long the source has known and how frequently the source
has seen the individual; how consistent the opinion is with
other evidence; the degree to which the source presents
relevant evidence to support an opinion; how well the source
explains the opinion; whether the source has a specialty or
area of expertise related to the individual's
impairment(s); and any other factors that tend to support or
refute the opinion.
Id. An adjudicator “generally should explain
the weight given to opinions from these ‘other
sources'” or should otherwise discuss the evidence
in a manner that permits a claimant or subsequent reviewer
“to follow the adjudicator's reasoning.”
Id. at *6.
undersigned finds that the ALJ did not err in her treatment
of Nurse Gallegos's opinions. The Tenth Circuit has held
that all that is required from an ALJ are “good
reasons” when discussing the weight afforded to an
opinion from a nurse practitioner. See Nichols v.
Astrue, 341 F. App'x 450, 454 (10th Cir. 2009)
(unpublished) (citing Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007)). Further, these “good
reasons” may properly derive from the application of
the §§ 404.1527(d) and 416.927(d) factors to a
nurse practitioner's opinions. “It is not
necessary, however, for the ALJ to address each factor
expressly or at length.” Nichols, 341 F.
App'x. at 453 (quoting SSR 06-03p).
case, the ALJ explained that she gave Nurse Gallegos's
opinions “little weight” primarily because she
“is a nurse practitioner and not a doctor.” AR
54. This evaluation was appropriate, as it explained why the
ALJ discredited Nurse Gallegos's assessment that
Plaintiff had “chronic medical conditions”
including “major depression, fibromyalgia,
osteoarthritis of multiple joints and back problems, ”
which the ALJ had detailed in the two preceding sentences. AR
53-54. For purposes of the Act, Nurse Gallegos was not a
competent medical source to diagnose these impairments.
See SSR 06-03p, 2006 WL 2329939, at *2.
Additionally, the ALJ faulted Nurse Gallegos's opinion
for being “vague as to what amounts [Plaintiff] can
carry, push and or pull.” AR 54. Although Plaintiff
asserts “[t]he ALJ could have also re-contacted Nurse
Gallegos for additional information, ” Pl.'s Reply
3, ECF No. 26, that contact would only have been necessary if
the ALJ had “insufficient evidence to determine”
whether Plaintiff was disabled. See 20 C.F.R. §
404.1520b(c) (2016). That was not the case here, as the ALJ
turned to Nurse Gallegos's own treatment notes, in tandem
with Plaintiff's statements about her activities of daily
living, to determine Plaintiff was not disabled. In fact, the
ALJ's review of those treatment notes led to the third
basis for discrediting Nurse Gallegos opinion, in that the
notes did not support Nurse Gallegos's opinion concerning
Plaintiff's impairments. See Castellano v. Sec'y
of Health & Human Servs., 26 F.3d 1027, 1029 (10th
Cir. 1994) (discounting treating physician opinion which was
unsupported by his own notes). Each of the above represents a
“good reason” for discounting Nurse
Gallegos's opinion, and, under Tenth Circuit precedent,
“[n]othing more was required.” See
Oldham, 509 F.3d at 1258. Therefore, the Court will deny
Dr. Paula Hughson, M.D., Agency Consultative
Plaintiff argues that the ALJ improperly accorded only
“some weight” to the opinions of Dr. Paula
Hughson, the consultative psychiatrist. Pl.'s Mot. 13-14.
Following an evaluation of Plaintiff on January 3, 2013, Dr.
Hughson completed both a “Consultative Psychiatric
Examination Report” and a separate checkbox-style form
entitled “Statement of Opinion of Abilities
(Psychiatric Only).” AR 370-75. On the form, Dr.
Hughson noted numerous mild mental limitations, and one
moderate limitation in Plaintiff's “ability to
carry out instructions.” AR 375. From that singular
limitation, Plaintiff suggests the ALJ “supplie[d]
flawed reasoning to support her findings . . . [and] did not
explain how Dr. Hughson's opinion or other medical
evidence of record supports her RFC that [Plaintiff] can make
simple decisions with few workplace changes.”
Id. at 13. Indeed, by her account, “the
ALJ's failure to evaluate properly the opinion of Dr.
Hughson requires reversal and remand.” Id. at
Commissioner attacks this claim on two grounds. First, she
posits that alongside the opinion of Dr. Hughson, the ALJ
accorded “great weight” to the non-examining
state agency consultants, Dr. Dan Cox, M.D., and Dr. Susan
Daugherty, Ph.D., AR 54, both of whom opined that
“Plaintiff was capable of understanding, remembering,
and carrying out simple and detailed instructions.”
Def.'s Resp. 15 (citing AR 90-92 (Dr. Cox), AR 121-22
(Dr. Daugherty)). Further, the Commissioner highlights how
the ALJ “only gave ‘some weight' to Dr.
Hughson's opinion[, ] noting that she only gave Dr.
Hughson's GAF score of 55 weight in relation to
Plaintiff's concentration.” Id. (citing AR
54). Thus, she reasons, albeit obliquely, that the RFC
ultimately crafted by the ALJ is “[c]onsistent with Dr.
Hughson's opinion.” Id. In the
alternative, the Commissioner argues that the one moderate
limitation identified by the ALJ was ascribed in “the
context of considering whether Plaintiff's impairments
met or equaled a listing.” Id. at 16. As a
consequence, she contends “it was not inconsistent for
the ALJ to find Plaintiff had moderate limitations in
concentration, persistence, and pace when considering whether
her impairments met or equaled a listing, but then assess [a]
residual functional capacity limiting Plaintiff only to
simple decisions with few workplace changes.”
Id. (internal citations omitted).
committed no error here, despite the parties' inability
to identify why. The Tenth Circuit's decision in
Smith v. Colvin makes clear that “an
administrative law judge can account for moderate limitations
by limiting the claimant to particular kinds of work
activity.” 821 F.3d 1264, 1269 (10th Cir. 2016) (citing
Vigil v. Colvin 805 F.3d 1199, 1204 (10th Cir.
2015)). In Smith, the non-examining state physician
assessed a similar “moderate limitation” in the
claimant's ability to “accept instructions and
respond appropriately to criticism by supervisors.”
Id. at 1268. The ALJ omitted that limitation in the
claimant's RFC and found instead that the claimant
“(1) could not engage in face-to-face contact with the
public and (2) could engage in only simple, repetitive, and
routine tasks.” Id. at 1269. “Through
these findings, ” the Tenth Circuit held that
“the [ALJ] incorporated the functional limitations of
[the claimant's] moderate nonexertional
the rule in Smith v. Colvin, the ALJ's RFC
finding in the present case accounts for the moderate
limitation identified by Dr. Hughson. Moreover, on a
functional level, by limiting Plaintiff to light work, simple
decisions, and few workplace changes, the RFC limits
Plaintiff to unskilled work, see AR 55-56, where a
claimant need only understand, remember, and carry out
“simple instructions.” SSR 96-9P, 1996 WL 374185,
at *9 (July 2, 1996). This only reinforces the wisdom of
Smith v. Colvin, and lends credence to this
Court's decision to deny this claim.
Ms. Charlene Chavez, Vocational Rehabilitation
Plaintiff claims “[t]he ALJ erred by failing to
discuss” the opinion of Ms. Charlene Chavez, a
vocational rehabilitation counselor. Pl.'s Reply 4. She
claims “the ALJ indicated she knew” that
Plaintiff had been to the Division of Vocational
Rehabilitation, but failed to discuss Ms. Chavez's
opinion that Plaintiff had “been unsuccessful in
securing her employment due to her disability being too
severe.” Pl.'s Mot. 14. Plaintiff insists that this
opinion should have been evaluated under SSR 06-03p as an
“other source, ” and further, that the ALJ's
failure to do so necessitates remand.
Commissioner responds that Ms. Chavez's letter represents
an impermissible intrusion into the province of the ALJ to
determine disability. See Def.'s Resp. 17.
Further, she argues the ALJ “is not required to
explicitly discuss a non-medical opinion so long as it is
evident she considered it.” Id. (citing
Keyes-Zachary v. Astrue, 695 F.3d 1156, 11663 (10th
Cir. 2012)). Finally, the Commissioner believes “this
Court should take her word for it” when the ALJ states
she considered the entire record. Id. (citing
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir.
the Court declines the Commissioner's invitation to
merely “take the ALJ's word for it, ” the
Court still cannot find reversible error here. Under SSR
06-03p, information from “other sources” like Ms.
Chavez “cannot establish the existence of a medically
determinable impairment, ” but rather, may only
“provide insight into the severity of the impairment(s)
and how it affects the individual's ability to
function.” SSR 06-03p, 2006 WL 2329939, at *2.
Nonetheless, Ms. Chavez's letter clearly goes beyond
providing insight about Plaintiff's impairments and how
they affect her. See AR 402. In fact, the letter not
only concludes that Plaintiff has limitations - including
depression, fibromyalgia, osteoarthritis, and back problems -
but goes so far as to state that Plaintiff has been
unsuccessful in securing employment as a direct
result of these limitations. AR 402. And yet, the letter
goes even further. Prior to its conclusion, the letter
communicates that Plaintiff's case could be closed
because her disability is “too severe.” AR 402.
Notwithstanding Ms. Chavez's obvious opinion regarding
Plaintiff's disability, the ultimate issue of disability
is not for a vocational rehabilitation counselor to
determine. Governing regulations allocate that authority
exclusively to the ALJ. See 20 C.F.R. §§
404.1527(d), 416.927(d). Beyond her comments regarding
Plaintiff's disability, Ms. Chavez's letter provided
nothing for the ALJ to review under the relevant “other
source” standard. The record makes clear that the ALJ
considered Ms. Chavez's letter,  and based on its
non-medical, non-relevant content, regulations required
nothing more. See Keyes-Zachary, 695 F.3d at
1163-67. The Court denies this claim.
The ALJ's Step Five Finding Is Supported by Substantial
Plaintiff contends that the ALJ's step five finding is
not supported by substantial evidence. She frames the
challenge by noting that, at step five of the sequential
evaluation, the Commissioner carries the burden “to
show that the claimant is able to perform other work existing
in significant numbers in the national economy.”
Pl.'s Mot. 14. By Plaintiff's assessment,
“[t]he numbers cited by the ALJ in the decision do not
correspond to the jobs of counter clerk, garment bagger, and
office helper, but rather a larger group of occupations those
jobs fall into.” Id. at 16. Thus, she reasons,
“[w]hen the ALJ concluded that the number of jobs was
significant, she was relying on incorrect figures.”
Id. (citing AR 55-56). Consequently, she claims
“reversal and remand are required, ” Pl.'s
Mot. 17, and cites to Trimiar for an exposition of
the factors that should underpin the ALJ's ultimate
decision. Id. at 14-15 (citing Trimiar v.
Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992)
(providing the following factors to consider at step five in
determining whether work exists in significant numbers: (1)
the level of claimant's disability; (2) the reliability
of the vocational expert's testimony; (3) the distance
claimant is capable of travelling to engage in the assigned
work; (4) the isolated nature of the jobs; and (5) the types
and availability of such work)).
Commissioner contests Plaintiff's claim, and adds that
“the ALJ may rely upon vocational expert testimony or
information from various occupational sources” to
determine whether work exists in the national economy in
significant numbers. Def.'s Resp. 18 (citing 20 C.F.R.
§ 404.1566(d) (2016)). She further explains that the
Dictionary of Occupational Titles
(“DOT”) “provides significant information
about the exertional requirements of a job, but does
not contain information regarding the frequency of a job
in the national economy.” Id. (emphasis
added). Accordingly, she states, “the vocational expert
identified the number of jobs within the national economy
based upon the [O]ccupational [E]mployment [S]urvey,
then carved out the number of jobs for each position that
were full-time.” Id. (citing AR 80). Lastly,
the Commissioner notes the VE “provided a third number
for each job identified that she stated represented the DOT
number for the job, ” but challenges Plaintiff's
notion that the ALJ could only rely on that third
data set. Id. Rather, she contends Plaintiff has
cited “no authority for that proposition, ” and
instead, she urges that case law “supports a more
common sense approach” to deciding these issues.
Id. at 18-19.
core, this claim arises from the testimony of VE Weber, who
testified that someone with Plaintiff's assigned RFC
could perform three separate jobs. See AR 79-81. The
first she identified was “counter clerk, ” DOT
number 249.366-010. She stated, “[w]ithin the national
economy there are 434, 000 jobs within the [O]ccupational
[E]mployment [S]urvey; 246, 000 of those are considered full
time; and 1, 600 are representing the DOT number for
the counter clerk.” AR 80 (emphasis in original). She
then advanced the position of “garment bagger, ”
DOT number 920.687-018. She observed, “[w]ithin the
national economy there are 660, 600 jobs within the
[O]ccupational [E]mployment [S]urvey; 529, 000 of those are
considered full time; and 800 are representing the garment
bagger DOT.” AR 80 (emphasis in original).
Lastly, she suggested that Plaintiff could work as an
“office helper, ” DOT number 239.567-010. AR 80.
As to this occupation, she indicated that “[w]ithin the
national economy there are 77, 000 jobs within the
occupational employment group; 58, 000 are full time; 3, 900
are representing the office helper.” AR 80. In sum,
between the three jobs, the VE testified that there were 1,
171, 600 jobs available to Plaintiff within the national
economy, of which 833, 000 were full time, and 6, 300
represented jobs squarely within Plaintiff's recommended
DOT numbers. See AR 80.
VE's trifurcation between jobs within the national
economy, full-time jobs in the national economy, and jobs
“representing” the specific DOT number is a
peculiar break from the customary terminology in these cases.
Ultimately, whether by their oddity, or by the ALJ's
desire to simplify the numbers, the VE's delineations did
not appear in the ALJ's decision. AR 55-56. Instead, the
ALJ recounted that Plaintiff could “work as a counter
clerk in retail, SVP 2, unskilled DOT#249-366-010 (433, 000),
a garment bagger, SVP 1, unskilled, DOT#920-687-018 (660,
000) and an office helper, SVP 2, unskilled DOT#239-567-010
(77, 000).” This abbreviated reference to full-time OES
numbers, however, also deviates from the mean in cases filed
in the district courts across the Tenth Circuit, where both
the ALJ and the reviewing court typically rely on VE
testimony about two categories of jobs: (1) those existing in
the national economy, and (2) those existing in the regional
economy or the state of filing. See, e.g., Order,
Sep. 29, 2016, ECF No. 25, at 30, Ryan v. Colvin,
Civ. No. 15-740 KBM (D.N.M. filed Aug. 24, 2015)
(unpublished) (describing VE testimony on jobs in the
national economy and regional economy); Pursley v.
Colvin, No. CIV-15-276-SPS, 2016 WL 5408154, at *2 (E.D.
Okla. Sept. 28, 2016) (unpublished) (noting ALJ's finding
that claimant could perform other work in the regional or
national economy); Kummer v. Colvin, No.
2:15-CV-00318-DBP, 2016 WL 4691588, at *5 (D. Utah Sept. 7,
2016) (unpublished) (discussing VE testimony of positions
available nationally and regionally); Wright v.
Colvin, No. CIV-15-558-BMJ, 2016 WL 4077244, at *2 (W.D.
Okla. July 29, 2016) (noting the ALJ's reliance on VE
testimony to find jobs existed in significant numbers in the
regional and national economies). The focus on jobs in
either the national economy or regional economy is a
reflection of unique Tenth Circuit case law, which allows an
ALJ to make step five findings based on a determination of
whether work exists in significant numbers in the regional
or national economy, while still acknowledging
“that the controlling statutes, federal regulations,
and case law all indicate that the proper focus generally
must be on jobs in the national, not regional,
economy.” Raymond v. Astrue, 621 F.3d 1269,
1274 (10th Cir. 2009).
the novelty of the way in which job numbers were calculated
in this case, the Court cannot accept Plaintiff's
position that the ALJ could only rely on the VE's
testimony “representing” the specific DOT number.
See Pl.'s Mot. 16-17. To the contrary, the
Commissioner has aptly noted that Plaintiff “cites to
no authority for that proposition.” Def.'s Resp.
18. In fact, what authority Plaintiff has cited to in her
Reply does not support her position. See Pl.'s
Reply 2 (citing Carpenter v. Astrue, 537 F.3d 1264,
1270 (10th Cir. 2008)). The Carpenter court was not
concerned with an ALJ's use of OES groupings data to
support a finding of sufficient jobs in the national economy,
but rather, with the VE's failure to identify specific
jobs, according to DOT numbers, that the claimant could
perform in the national economy. See Carpenter, 537
F.3d at 1270. This was particularly important in
Carpenter, because the ALJ had found the claimant to
have mild mental retardation, id. at 1265, and the
court worried that “[a] proper determination of the
combined impact of her impairments on her ability to work
underlies a proper finding of her mental and physical
residual functional capacities, which is necessary to
correctly phrase the ALJ's hypothetical questions to the
VE.” Id. at 1270. At no point does the opinion
discuss job numbers in the national economy.
argument is further undercut by the fact that numbers
approximating OES groupings are routinely used throughout the
Tenth Circuit to support step five findings. In fact, each of
the three jobs proposed by the VE - counter clerk, garment
bagger, and office helper -have appeared previously in scores
of cases within the circuit, and in each, the testimony
concerning the relevant number of jobs in the national
economy approximates the numbers for the OES groupings in the
case at bar. See e.g., Wendelin v. Astrue, 366 F.
App'x 899, 903 (10th Cir. 2010) (unpublished) (noting 44,
591 counter clerk jobs nationally); Taylor v.
Astrue, No. 11-CV-01425-CMA, 2012 WL 1520179, at *7 (D.
Colo. Apr. 30, 2012) (unpublished) (citing 50, 600 counter
clerk jobs nationally); Luttrell v. Astrue, No.
08-CV-357-TLW, 2010 WL 3824564, at *8 (N.D. Okla. Sept. 27,
2010) (unpublished), aff'd, 453 F. App'x 786
(10th Cir. 2011) (discussing 75, 000 counter clerk jobs
nationally); Order, Feb. 11, 2013, ECF No. 27, at 10,
Franco v. Colvin, Civ. No. 12-819 WPL (D.N.M. filed
July 27, 2012) (unpublished) (identifying 467, 010 garment
bagger jobs in the national economy, and 1, 110 jobs in the
regional (State of New Mexico) economy); Hernandez v.
Colvin, 567 F. App'x 576, 581 (10th Cir. 2014)
(unpublished) (identifying 158, 110 office helper jobs in the
national economy); Long v. Colvin, No. CIV-14-402-F,
2015 WL 5692318, at *13 (W.D. Okla. Sept. 11, 2015)
(unpublished), report and recommendation adopted,
No. CIV-14-402-F, 2015 WL 5708388 (W.D. Okla. Sept. 28, 2015)
(finding 140, 000 office helper jobs in the national
economy); Whalen v. Colvin, No. 14-CV-01290-CBS,
2016 WL 1168485, at *2 (D. Colo. Mar. 23, 2016) (unpublished)
(reporting 89, 460 office helper jobs in the national
economy). Thus, it stands to reason that courts in this
circuit routinely accept numbers correlating to OES groupings
to substantiate job numbers in the national economy. To
conclude in the converse and accept Plaintiff's argument,
this Court would have to discount findings from across both
the district courts in the Tenth Circuit and from the Tenth
Circuit itself. This, the Court cannot and will not do.
Court finds no fault in the VE using OES grouping data to
describe quantities of jobs in the national economy and no
error in the ALJ using that data to support Plaintiff's
finding of nondisability. The Court finds the ALJ's step
five analysis to be supported by substantial evidence, and as
a consequence, this claim must be denied.
reasons articulated above, the Court holds that the ALJ's
decision was supported by substantial evidence and the
correct legal standards were applied.
THEREFORE ORDERED that Plaintiff's Motion to Reverse and
Remand to Agency for Rehearing, With Supporting Memorandum
[ECF No. 24] IS HEREBY DENIED.
FURTHER ORDERED that the Commissioner's final decision is
HEREBY AFFIRMED and that the instant cause be DISMISSED. IT
IS SO ORDERED.
 A court's review is limited to the
Commissioner's final decision, 42 U.S.C. § 405(g)
(2012), which generally is the ALJ's decision, not the
Appeals Council's denial of review. 20 C.F.R. §
404.981 (2016); O'Dell v. Shalala, 44 F.3d 855,
858 (10th Cir. 1994).
 On direct examination, the ALJ asked
Plaintiff, “And you recently went to division of
vocational rehabilitation; is that correct?” AR 68.
This question, asked by the ALJ on March 25, 2014, correlates
to the letter drafted by Ms. Chavez one week earlier, on
March 18, 2014. Compare AR 61 (March 25, 2014 - date
of hearing), with AR 402 (March 18, 2014 - date of
Ms. Chavez's letter). Had the ALJ not reviewed the
letter, she would have no basis for this unusual
 The DOT includes detailed descriptions
of jobs (classified by their exertional and skill
requirements) that exist in the national economy. 20 C.F.R.
§ 220.134 (2016). Regulations require the Commissioner
to take administrative notice of job information provided by
the DOT. 20 C.F.R. § 404.1566 (2016).
 The Occupational Employment Statistics
(“OES”) Survey is a federal-state cooperative
program between the U.S. Department of Labor's Bureau of
Labor Statistics and the state workforce agencies that
provides national occupational employment and wage rate
estimates. See Anders v. Colvin, No.
2:14-CV-00610-EJF, 2015 WL 5555745, at *13 (D. Utah Sept. 18,
2015) (unpublished) (citation and internal quotation marks
omitted); Guidry v. Astrue, No. 08-CV-01846-PAB,
2009 WL 4884282, at *5 (D. Colo. Dec. 10, 2009)
(unpublished). Job data in the OES naturally varies from the
DOT, as the OES classifies jobs by census codes, known as
Standard Occupational Classification (“SOC”)
codes, rather than DOT codes. McDonald v. Colvin,
No. CIV-14-220-SPS, 2015 WL 5749392, at *2 (E.D. Okla. Sept.
30, 2015) (unpublished).