Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 1 of 44
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`Plaintiff,
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`vs.
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`Civ. No. 18-505 SCY
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`ERNESTO M. LEAN,
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`ANDREW SAUL, Commissioner of Social
`Security,1
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`Defendant.
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`MEMORANDUM OPINION AND ORDER2
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` THIS MATTER is before the Court on the Social Security Administrative Record filed
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`September 4, 2018, Doc. 12, in support of Plaintiff Ernesto M. Lean’s Complaint, Doc. 1,
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`seeking review of the decision of Defendant Andrew Saul, Commissioner of the Social Security
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`Administration, denying Plaintiff’s claim for disability insurance benefits under Title II and Title
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`XVI of the Social Security Act, 42 U.S.C. § 401 et seq. On January 25, 2019, Plaintiff filed her
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`Motion To Remand For Payment Of Benefits, Or In The Alternative, For Rehearing, With
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`Supporting Memorandum. Doc. 21. The Commissioner filed a Brief in Response on March 18,
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`2019, Doc. 22, and Plaintiff filed a Reply on April 12, 2019, Doc. 23. The Court has jurisdiction
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`to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having
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`meticulously reviewed the entire record and the applicable law and being fully advised in the
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`premises, the Court finds the Motion is not well taken and is DENIED.
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`1 Andrew Saul was sworn in as Commissioner of the Social Security Administration on June 17,
`2019 and is automatically substituted as a party pursuant to Federal Rule of Civil Procedure
`25(d).
`2 Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all
`proceedings and to enter an order of judgment. Doc. 8.
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 2 of 44
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`Background and Procedural Record
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`Claimant Ernesto M. Lean3 suffers from the following severe impairments: pituitary
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`macroadenoma; headaches; lumbar spine and cervical spine degenerative disc disease; bilateral
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`bunions and hallux valgus; diabetes; psychosis, not otherwise specified; major depression,
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`recurrent; PTSD; and methamphetamine abuse, in remission. Administrative Record (“AR”) at
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`14. She alleges that she became disabled as of November 25, 2013. AR 11. She has a high school
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`degree and completed two years of college for an associate’s degree. AR 321, 1078. She has past
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`work as a caregiver and a fry cook. AR 117-19.
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`On May 6, 2014, Ms. Lean filed a claim of disability under Titles II and XVI. AR 152.
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`Her applications were initially denied on September 4, 2014, AR 152-53, and upon
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`reconsideration on March 23, 2015, AR 170-71. Administrative Law Judge (“ALJ”) James
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`Bentley conducted a hearing on December 22, 2016. AR 108. Ms. Lean appeared in person at the
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`hearing with attorney representative Don Smith. AR 108. The ALJ took testimony from Ms.
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`Lean and an impartial vocational expert (“VE”), Amy Donaldson. AR 108.
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`On May 17, 2017, ALJ Bentley issued an unfavorable decision. AR 8. The Appeals
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`Council denied review on April 21, 2018, noting that Ms. Lean submitted additional evidence
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`but declining to consider it. AR 1-2. The ALJ’s decision is the Commissioner’s final decision for
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`purposes of judicial review. Ms. Lean proceeded to federal court on May 31, 2018. Doc. 1.
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`Because the parties are familiar with Ms. Lean’s medical history, the Court reserves discussion
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`of the medical records relevant to this appeal for its analysis.
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`3 The Motion explains: “Ernesto Lean has gender dysphoria and is male to female transgender.
`She prefers female pronouns, and some records refer to her by her preferred first name, ShaSha.
`However, if a medical record used the male pronoun, that pronoun will be used in describing the
`record to avoid confusion.” Doc. 21 at 1 n.1. The Court will follow the same practice.
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`2
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 3 of 44
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`Applicable Law
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`A.
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`Disability Determination Process
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`An individual is considered disabled if she is unable “to engage in any substantial gainful
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`activity by reason of any medically determinable physical or mental impairment which can be
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`expected to result in death or which has lasted or can be expected to last for a continuous period
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`of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance
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`benefits); see also id. § 1382(a)(3)(A) (pertaining to supplemental security income disability
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`benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-
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`step sequential evaluation process (“SEP”) to determine whether a person satisfies the statutory
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`criteria as follows:
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`At step one, the ALJ must determine whether the claimant is engaged in
`“substantial gainful activity.”4 If the claimant is engaged in substantial
`gainful activity, she is not disabled regardless of her medical condition.
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`At step two, the ALJ must determine the severity of the claimed physical
`or mental impairment(s). If the claimant does not have an impairment(s) or
`combination of impairments that is severe and meets the duration
`requirement, she is not disabled.
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`At step three, the ALJ must determine whether a claimant’s impairment(s)
`meets or equals in severity one of the listings described in Appendix 1 of
`the regulations and meets the duration requirement. If so, a claimant is
`presumed disabled.
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`(1)
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`(2)
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`(3)
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`(4)
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`If, however, the claimant’s impairments do not meet or equal in severity
`one of the listings described in Appendix 1 of the regulations, the ALJ
`must determine at step four whether the claimant can perform her “past
`relevant work.” Answering this question involves three phases. Winfrey v.
`Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all
`of the relevant medical and other evidence and determines what is “the
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`4 Substantial work activity is work activity that involves doing significant physical or mental
`activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a
`part-time basis or if you do less, get paid less, or have less responsibility than when you worked
`before. Id. Gainful work activity is work activity that you do for pay or profit. 20 C.F.R.
`§§ 404.1572(b), 416.972(b).
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`3
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 4 of 44
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`most [claimant] can still do despite [her physical and mental] limitations.”
`20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
`residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
`416.945(a)(3). Second, the ALJ determines the physical and mental
`demands of claimant’s past work. Third, the ALJ determines whether,
`given claimant’s RFC, the claimant is capable of meeting those demands.
`A claimant who is capable of returning to past relevant work is not
`disabled.
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`If the claimant does not have the RFC to perform her past relevant work,
`the Commissioner, at step five, must show that the claimant is able to
`perform other work in the national economy, considering the claimant’s
`RFC, age, education, and work experience. If the Commissioner is unable
`to make that showing, the claimant is deemed disabled. If, however, the
`Commissioner is able to make the required showing, the claimant is
`deemed not disabled.
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`(5)
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`See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
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`(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
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`(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
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`The claimant has the initial burden of establishing a disability in the first four steps of this
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`analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner
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`at step five to show that the claimant is capable of performing work in the national economy. Id.
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`A finding that the claimant is disabled or not disabled at any point in the five-step review is
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`conclusive and terminates the analysis. Casias v. Sec’y of Health & Human Serv., 933 F.2d 799,
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`801 (10th Cir. 1991).
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`B.
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`Standard of Review
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`This Court must affirm the Commissioner’s denial of social security benefits unless
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`(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
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`proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
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`F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
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`Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
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`4
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 5 of 44
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`evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
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`1270, 1272 (10th Cir. 2008). “[W]hatever the meaning of ‘substantial’ in other contexts, the
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`threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148,
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`1154 (2019). Substantial evidence “is ‘more than a mere scintilla.’” Id. (quoting Consol. Edison
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`Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means—and means only—such relevant evidence as
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`a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation
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`marks omitted).
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`A decision “is not based on substantial evidence if it is overwhelmed by other evidence in
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`the record,” Langley, 373 F.3d at 1118, or “constitutes mere conclusion,” Musgrave v. Sullivan,
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`966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a
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`sufficient basis to determine that appropriate legal principles have been followed.” Jensen v.
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`Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to
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`discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the
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`evidence,” and “the [ALJ’s] reasons for finding a claimant not disabled” must be “articulated
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`with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But
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`where the reviewing court “can follow the adjudicator’s reasoning” in conducting its review,
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`“and can determine that correct legal standards have been applied, merely technical omissions in
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`the ALJ’s reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
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`(10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more
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`comprehensive the ALJ’s explanation, the easier [the] task; but [the court] cannot insist on
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`technical perfection.” Id.
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`5
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 6 of 44
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`Analysis
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`In support of her Motion to Remand, Ms. Lean raises three main arguments. First, she
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`argues that the ALJ erred at step four by improperly: assessing the effects of Ms. Lean’s
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`headaches; disregarding treating psychiatrist Dr. Nathaniel Sharon’s opinion assigning a Global
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`Assessment of Functioning (“GAF”) score; rejecting the opinion of LASAC Don Smith, Ms.
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`Lean’s treating counselor; assessing Ms. Lean’s social limitations; rejecting the opinion of Dr.
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`Camellia Clark, consultative examiner; rejecting the opinion of PA Lucas Lujan, her treating
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`physician assistant; and assessing Ms. Lean’s subjective symptom evidence. Doc. 21 at 9-21.
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`Second, she argues that the ALJ erred at step five by failing to resolve a conflict between the VE
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`testimony and the Dictionary of Occupational Titles (“DOT”). Doc. 21 at 21-22. Finally, she
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`argues that the Appeals Council should have considered her new evidence. Doc. 21 at 23-27. Ms.
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`Lean argues for this Court to reverse and remand with instructions for the Commissioner to issue
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`disability benefits; in the alternative, she requests a remand for rehearing. Doc. 21 at 27.
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`I.
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`The ALJ Did Not Err At Step Four.
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`In assessing a claimant’s RFC at step four, the ALJ must consider the combined effect of
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`all of the claimant’s medically determinable impairments, and review all of the evidence in the
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`record. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). “[M]ost importantly, the ALJ’s
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`RFC assessment must include a narrative discussion describing how the evidence supports each
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`conclusion, citing specific medical facts and nonmedical evidence.” Id. (internal quotation marks
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`and alterations omitted). “Requiring the ALJ to make specific findings on the record at each
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`phase of the step four analysis provides for meaningful judicial review.” Winfrey v. Chater, 92
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`F.3d 1017, 1025 (10th Cir. 1996).
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`Here, the ALJ found that, taking into account her severe impairments, Ms. Lean is
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`capable of performing less than the full range of light work. AR 18. She requires a sit/stand
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`6
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 7 of 44
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`option and is limited to simple or detailed, but not complex, tasks. AR 4501. In her Motion, Ms.
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`Lean argues that this finding was error and that the ALJ should have found her disabled.
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`Although Ms. Lean identifies seven step-four errors which she discusses seriatim, the Court will
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`divide them into two categories: (1) the ALJ’s consideration of medical evidence and (2) the
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`ALJ’s consideration of medical opinions.
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`A.
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`The ALJ properly evaluated the medical evidence.
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`Ms. Lean argues that the ALJ improperly discounted medical evidence related to her
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`headaches, Doc. 21 at 9-11; her limitations on social functioning, Doc. 21 at 15-17; and her
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`subjective symptom evidence, Doc. 21 at 20-21. The Court finds that the ALJ’s discussion of the
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`medical evidence was sufficient.
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`“The regulations require the ALJ to consider all evidence in the case record when he
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`makes a determination or decision whether claimant is disabled.” Keyes-Zachary v. Astrue, 695
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`F.3d 1156, 1166 (10th Cir. 2012) (citing 20 C.F.R. § 404.1520(a)(3)) (internal quotation marks
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`and alterations omitted). An ALJ may not “pick and choose among medical reports, using
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`portions of evidence favorable to his position while ignoring other evidence.” Hardman v.
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`Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). However, while “[t]he record must demonstrate
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`that the ALJ considered all of the evidence,” he “is not required to discuss every piece of
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`evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (emphasis added). “Rather,
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`in addition to discussing the evidence supporting his decision, the ALJ also must discuss the
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`uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence
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`he rejects.” Id.
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`To meet her burden in this Court, Ms. Lean must not only “point[] to evidence that she
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`claims the ALJ failed to discuss,” but also “say why it was significantly probative.” Mays v.
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`Colvin, 739 F.3d 569, 576 (10th Cir. 2014). The Court will not do so for her. Id.
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`7
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 8 of 44
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`1.
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`Headaches
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`At step two, the ALJ found that Ms. Lean’s impairment of headaches is severe. AR 14.
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`At step three, he found that there is no listing for headaches and Ms. Lean’s headaches do not
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`equal the listing for epilepsy or any other listing. AR 15. He discussed evidence that Ms. Lean
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`reported in 2016 that her headaches are generally unresponsive to medications and in 2015 that
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`her symptoms resolved after she took ibuprofen or went to sleep. Id. At step four, the ALJ
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`discussed her history with headaches based on medical evidence from 2014 to 2017. AR 19-20.
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`He remarked that “during a February 11, 2017 emergency room visit, she reported that after she
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`was diagnosed with a brain tumor, she had noticed worse headaches, worse blurry vision, and
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`some right lower extremity weakness” and “[s]he rarely, if ever, complained of headaches after
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`this until diagnosed with pituitary tumor.” AR 20.
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`She underwent multiple CT head/brain scans, which were normal. The scans
`showed no evidence of intracranial mass or hemorrhage to suggest an etiology to
`her chronic headaches. She had no focal neurological deficits, no evidence to
`suggest meningitis, and no evidence of temporal arteritis or sinusitis or acute
`infection. Moreover, her history did not suggest a subarachnoid hemorrhage.
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`AR 20 (citations omitted). The ALJ concluded:
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`Based on the above-discussed medical evidence, I find that she is limited to
`performing, at most, a range of “light” work, noting this is consistent with her
`report of being able to lift 25 pounds prior to January 30, 2017 motor vehicle
`accident (with no abnormal finding other than tenderness after the accident) and
`her report that she can walk one to two miles slowly. She also reported she can sit,
`but not for a long time. I find that her physical impairments warrant not only
`occasional postural limitations, but also a sit/stand option, with the parameters
`enumerated above, to allow her to change positions in order to relive discomfort,
`but without leaving the workstation so as not to diminish pace or production.
`Though she only intermittently endorsed orthostatic dizziness and exhibiting no
`difficulties balancing on examination, I find it reasonable that due to complaint of
`dizziness she must avoid unprotected heights and dangerous moving machinery. I
`note, finally, that the newly received medical evidence indicates no additional
`limitations [from] her pituitary macroadenoma surgery other than post-operative
`limits that are not expected to last 12 months.
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`AR 26-27.
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`8
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 9 of 44
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`Ms. Lean challenges the entirety of this finding. She argues that “ALJ Bentley ignored
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`the longitudinal and consistent evidence of Ms. Lean’s headaches, and failed to include resulting
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`limitations on her ability to function.” Doc. 21 at 9. Ms. Lean contends that the ALJ ignored
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`relevant medical evidence showing that her headaches were severe prior to her diagnosis of a
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`brain tumor. Id. at 10. She argues that the ALJ reached his conclusion by “picking and choosing
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`random evidence.” Doc. 21 at 10. She argues that the result of this error was to improperly
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`disregard “the occupational effects of Ms. Lean’s headaches” such as “memory problems, blurry
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`vision, and confusion.” Id. at 11.
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`Ms. Lean identifies three specific pieces of evidence she contends the ALJ should have
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`considered:
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` Ms. Lean complained of headaches at least 11 times prior to February 24, 2016
`(citing AR 499-500, 478-81, 492-93, 635-39, 576-78, 674, 624-26, 1078-79, 908-
`13, 932-35);
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` A January 2017 visit at which Ms. Lean told PA Lucas Lujan that she had
`recently been to the ER with a headache and blurred vision and that she had
`headaches “all the time now” (citing AR 1569);
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` Dr. Nathaniel Sharon’s medical opinion on August 25, 2016 that Ms. Lean had
`“memory, cognitive and psychotic disturbances from pituitary enlargement”
`(citing AR 1254);
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`Doc. 21 at 10.
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`The Court finds that this is not significantly probative evidence that the ALJ ignored. To
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`the contrary, the ALJ specifically acknowledged these first two pieces of evidence and cited
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`much of the same record evidence that Ms. Lean cites:
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` “On January 9, 2015, she had presented to the emergency room for complaint of
`headache” . . . . “Prior to this, the claimant had presented to the emergency room
`on multiple occasions in March through May 2014 for headache complaints” . . . .
`“[T]he attending physician on the last visit, dated May 30, 2014, noted that she
`had made ‘multiple vague neurologic complaints including headache and blurry
`vision even predating the [April 23, 2014] car accident.’” AR 20 (citing AR 850-
`51, 1178-83, 576-79, 623-27, 634-40 & 625).
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`9
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 10 of 44
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` “On January 27, 2017, she told her treating physician assistant Lucas Lujan that
`she had headaches all the time now” and she discussed with him “a January 20,
`2017 emergency room visit” where she disagreed that “the worst headache of her
`life” was just “experiencing a migraine.” AR 20 (citing 1537-40, 1544-52, 1558-
`65 & 1569).
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`Because the ALJ did consider this evidence, Ms. Lean’s argument is really one of failure
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`to properly weigh the evidence. The Court does not reweigh evidence in the ALJ’s place; it
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`determines whether the ALJ’s opinion is supported by substantial evidence. Here, the ALJ’s
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`decision is supported by substantial evidence. The ALJ acknowledged Ms. Lean’s complaints of
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`headaches to her providers. However, he chose to give those complaints less weight than Ms.
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`Lean’s multiple normal CT scans and the fact that no medical evidence in the record suggested
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`an etiology to her complaints of chronic headaches. AR 20. “The possibility of drawing two
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`inconsistent conclusions from the evidence does not prevent an administrative agency’s findings
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`from being supported by substantial evidence. [The court] may not displace the agency’s choice
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`between two fairly conflicting views, even though the court would justifiably have made a
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`different choice had the matter been before it de novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th
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`Cir. 2007). The ALJ’s discussion is sufficient on these points.
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`As for the third piece of evidence Ms. Lean points to, the Court agrees that the ALJ did
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`not specifically discuss treating psychiatrist Dr. Sharon’s August 25, 2016 statement that Ms.
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`Lean had “memory, cognitive and psychotic disturbances from pituitary enlargement.” Cf. Doc.
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`1 at 10 (citing AR 1249-54). Instead, the ALJ mentioned this visit only to note that Dr. Sharon
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`took over Ms. Lean’s medication management, continuing some medications and altering
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`another. AR 25. The Court does not agree, however, that anything in these treatment notes
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`constitutes specifically probative evidence the ALJ was required to discuss.
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`The statement in question provides in full: “I am concerned there are some memory,
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`cognitive and psychotic disturbances from pituitary enlargement and will also need to work
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`10
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 11 of 44
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`closely with endocrine.” AR 1254. There are no non-speculative statements in this treatment note
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`assigning limitations which the ALJ was required to discuss. Paulsen v. Colvin, 665 F. App’x
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`660, 666 (10th Cir. 2016) (the ALJ did not have to assign a specific weight to a doctor’s
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`statement that the claimant “probably has difficulty with concentration and remembering
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`because of attention problems” because the doctor did not assign any functional limitations); see
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`Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012) (the ALJ was not required to
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`assign a weight to “observations” that do not “offer[] an assessment of the effect of [the
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`claimant]’s mental limitations on her ability to work,” especially where “[t]he file includes much
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`more directly relevant evidence on these issues”); Cowan v. Astrue, 552 F.3d 1182, 1189 (10th
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`Cir. 2008) (statement regarding what a doctor does not know is not “a true medical opinion”);
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`Blazevic v. Colvin, No. 14-2394, 2015 WL 5006139, at *10 (D. Kan. Aug. 20, 2015) (physician’s
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`statement that “I am very concerned about [claimant]’s ability to maintain steady employment at
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`the present time due to his symptomatology” was “not an opinion” as it expresses “uncertainty
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`regarding [claimant]’s ability, rather than his opinion that [claimant] can or cannot maintain
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`steady employment”). Dr. Sharon is a psychiatrist, not a neurologist, and nowhere in the pages
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`cited by Ms. Lean does he offer an opinion about her functional limitations due to headaches
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`specifically. AR 1249-54.
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`Ms. Lean also argues that the combined evidence of her headaches is significantly
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`probative because “when considered in its entirety, the medical records reveal the occupational
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`effects of Ms. Lean’s headaches,” such as “memory problems, blurry vision, and confusion.”
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`Doc. 21 at 11. Again, however, the ALJ thoroughly discussed Ms. Lean’s blurry vision (at the
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`top of AR 21), making findings which Ms. Lean does not otherwise challenge. The ALJ also
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`discussed her complaints of memory loss (beginning on the bottom of AR 25 and continuing on
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`11
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 12 of 44
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`AR 26), and specifically gave only partial weight to the opinions of state agency psychologists
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`because he found greater limits on memory, attention, and concentration were supported by the
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`record (AR 28). The ALJ’s opinion clearly demonstrates that he did not ignore any of these
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`symptoms. This Court’s role is not to re-weigh the evidence. Oldham v. Astrue, 509 F.3d 1254,
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`1257-58 (10th Cir 2007). Of course, the Court may overturn the ALJ if his decision “is
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`overwhelmed by other evidence in the record,” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th
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`Cir. 2004), or if he “mischaracterizes” evidence, Talbot v. Heckler, 814 F.2d 1456, 1464 (10th
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`Cir. 1987). But the Court does not find the evidence cited by Ms. Lean to be so overwhelming
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`such that the ALJ’s opinion lacks substantial evidence, and Ms. Lean does not point to any
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`evidence that the ALJ mischaracterized or misapprehended in finding that her headaches do not
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`prevent her from performing light work.
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`In reply, Ms. Lean additionally relies on Lauer v. Commissioner, in which the Tenth
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`Circuit remands because “the ALJ did not analyze Ms. Lauer’s complaint about near-daily
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`migraine headaches at any step of his analysis.” 752 F. App’x 665, 667 (10th Cir. 2018); see
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`Doc. 23 at 2. In Lauer, the ALJ concluded that the claimant did not have headaches without
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`explaining why. Id. This decision thus has little relevance to this case, where the ALJ did
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`consider whether Ms. Lean’s headaches are a disabling impairment and explained (at length)
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`why they are not.
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`2.
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`Social functioning
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`The ALJ’s RFC limited Ms. Lean to “occasional contact with coworkers, supervisors,
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`and the general public.” AR 18. Ms. Lean argues that this limitation is not restrictive enough.
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`Doc. 21 at 15. Ms. Lean asserts that the activities the ALJ relied on to reach this finding—her
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`“ability to use public transit, independent functioning in her activities of daily living, and her
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`Case 1:18-cv-00505-SCY Document 25 Filed 07/31/19 Page 13 of 44
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`ability to go shopping and to a casino”—do not constitute evidence that she can interact with
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`others in the workplace. Doc. 21 at 15-16.
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`In support of her argument, Ms. Lean relies on various medical evidence of record. Ms.
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`Lean first argues that the ALJ should have interpreted her November 2016 casino trip to be
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`evidence of psychiatric problems rather than proof that she can function socially. Doc. 21 at 16.
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`She emphasizes that Ms. Lean reported to Dr. Sharon that, during the casino trip in question, she
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`suffered hallucinations and suicidal thoughts. Id.; AR 1237-38. Again, however, the ALJ
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`demonstrated that he considered—and weighed—this same evidence. See AR 24 (“The claimant
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`also endorsed auditory and visual hallucinations at times, such as hearing voices having
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`conversations, strange noises while listening to the radio, and seeing shadows at night.” (citing
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`AR 1255)); AR 25 (“[S]he reported improved psychosis, and described her hallucinations as only
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`occasionally hearing her brother-in-law yell at her when no one is there, and sometimes seeing
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`shadows.” (citing AR 1587)); AR 24 (“Beginning on August 25, 2016, treating psychiatrist Dr.
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`Nathaniel G. Sharon, M.D., to whom the claimant had first presented on February 4, 2016 for
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`hormone replacement therapy, found the claimant to be positive for chronic suicidal ideation, but
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`without intent or plan and with denial of nonsuicidal self-injurious behaviors.” (citing AR 1237,
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`1246 & 1253)). After discussing this evidence, the ALJ discounted it, noting that “since
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`establishing mental health care, [Ms. Lean] has consistently denied delusions, ideas of reference,
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`paranoid ideation, or grandiosity.” AR 24 (citing AR 1238,5 1246, 1342 & 1587). Substantial
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`evidence supports this determination, so the Court does not reweigh this evidence.
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`5 The ALJ cited to “Exhibit 23F/102,” although the relevant information appears on page 103 of
`Exhibit 23F, i.e., AR 1238.
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`Ms. Lean also challenges the ALJ’s finding that she had pleasant and cooperative
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`interactions with providers. Doc. 21 at 16. The ALJ relied on medical reports stating Ms. Lean
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`was cooperative (citing AR 493, 593-94, 846, 871, 900, 1073, 1078, 1107, 1240, 1342 & 1533),
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`pleasant (citing AR 594, 1246 & 1590), calm (citing AR 871 & 1078), friendly (citing AR 1078
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`& 12006), easy to engage (citing AR 588), and had eye contact that was good or within normal
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`limits (citing AR 588, 900, 980, 1078, 1246, 1342 & 1590). See AR 17.
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`Ms. Lean challenges these findings by pointing to treatment records in which providers
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`note that she is anxious and tearful. Id. (citing AR 492-93, 635-39, 680, 867-74, 898, 1072-74 &
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`1146-48). Again, the ALJ neither ignored nor mischaracterized any of this evidence. The ALJ
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`specifically discussed Ms. Lean’s anxiety in the course of several pages of analysis pertaining to
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`psychological impairments (AR 24-26). In fact, the ALJ discussed and cited many of the very
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`same treatment records Ms. Lean claims he “omitted.” For instance:
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` “[S]he reported increased anxiety depression and paranoia following a series of
`distressing events . . . .” AR 24 (citing AR 574, 588, 703, 840, 845 & 1078).
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` “On August 29, 2016, she asked Mr. Lujan about service dogs due to anxiety/
`depression, but was otherwise stable.” AR 25 (citing AR 1220).
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` “On August 26, 2014, she underwent a State Agency mental status examination
`conducted by Dr. Camellia Clark, M.D. She described her mood as ‘anxious.’”
`AR 25 (citing AR 680).
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` “On a few occasions, she was tearful when discussing her history.” AR 26 (citing
`AR 1073 & 1257).
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`Clearly, the ALJ did not ignore significantly probative medical evidence.
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`6 The ALJ cited to “Exhibit 23F/64,” although the relevant information appears on page 65 of
`Exhibit 23F, i.e. AR 1200.
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`Ms. Lean then attempts to support her argument that substantial evidence fails to support
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`the ALJ’s decision through citation to Groberg v. Astrue, 505 F. App’x 763 (10th Cir. 2012)
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`(remanding with instructions to award EAJA fees).7 In Groberg, the Tenth Circuit found that one
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`doctor’s appointment “is hardly solid evidence that Mr. Groberg had achieved any long-term
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`stability on his medications.” 505 F. App’x at 769. To the contrary, “Mr. Groberg experienced
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`many ups and downs in his condition.” Id. The Tenth Circuit stressed “that the ALJ concluded
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`these ailments would pose no limit on Mr. Groberg’s ability to work,” a conclusion which was
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`“seriously deficient” and “unsupported by substantial evidence.” Id.
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`Groberg is not on point. Unlike Groberg, the ALJ here both: (1) pointed to more than one
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`doctor visit noting controlled or improved symptoms, and (2) included highly restrictive
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`limitations on social interactions in the RFC. He limited Ms. Lean to only occasional contact
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`with others, and the VE testified that the jobs she identified were, in her experience, consistent
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`with the limitations on exposure to supervisors, coworkers and the public. AR 18, 121. Groberg
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`does not address whether those limitations would be sufficient for someone in Ms. Lean’s
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`position.
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`Ms. Lean also argues that the cited activities are so “minimal” that they cannot constitute
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`substantial evidence in support of the ALJ’s evaluation. Doc. 21 at 17. She relies on Thompson v.
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`Sullivan, in which the Tenth Circuit found that “minimal daily activities such as visiting
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`neighbors and doing light housework” are not substantial evidence of non-disability. 987 F.2d
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`1482, 1489-90 (10th Cir. 1993). Thompson held that the two-item list of daily activities in that
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`case provided insufficient grounds for the ALJ to find that the claimant’s complaints of pain
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`7 Ms. Lean also cites an earlier Tenth Circuit decision involving the same parties: Groberg v.
`Astrue, 415 F. App’x 65 (10th Cir. 2011)