REPORT AND RECOMMENDATION
BERNARD M. JONES, Magistrate Judge.
Plaintiff, Cecilia Lisoyo, seeks judicial review of the Social Security Administration's denial of her application for disability insurance benefits. United States District Judge Scott L. Palk has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR) [Doc. No. 13], and both parties have briefed their positions.1 For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
I. Procedural Background
On April 4, 2017, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 12-23. The Appeals Council denied Plaintiff's request for review. Id. at 1-3. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. § 404.1520. The ALJ first determined Plaintiff has not engaged in substantial gainful activity since May 27, 2015, her application date. AR 14.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "disorders of gastrointestinal system; post portal vein thrombosis; and intestinal blood clot." Id. Then, at step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 15-16.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that she:
[can] perform less than a full range of sedentary work . . . [and can] [n]ever climb ladders, ropes, or scaffolds. [She can] [f]requently climb ramps and stairs; [o]ccasionally stoop, kneel, crouch, or crawl; [and is] [l]imited to jobs which can be performed while using a hand-held assistive device such as a walker for ambulation.
Id. at 16.
At step four, the ALJ determined Plaintiff has no past relevant work, id. at 22, and at step five, found Plaintiff can perform unskilled work as document preparer, production worker, and/or food and beverage order clerk, work existing in significant numbers in the national economy. Id. at 22-23. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 23.
III. Claims Presented for Judicial Review
When the ALJ presented the vocational expert (VE) with a hypothetical question describing a claimant with Plaintiff's RFC, she included a limitation of "able to read or recognize only simple language." Id. at 16. The ALJ did not include that limitation in her final RFC finding, see supra at 2, and Plaintiff first alleges reversible error because the RFC and hypothetical question to the VE did not match "with precision." Pl.'s Br. at 3-5 (emphasis omitted). Plaintiff next argues that assuming the ALJ intended to include the reading limitation in the RFC finding, the VE's testimony that such a claimant could perform unskilled work as document preparer, production worker, and/or food and beverage order clerk conflicted with the Dictionary of Occupational Titles and the ALJ did not ask the VE to explain the conflict. Id. at 3-6.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). While the Court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, it does not reweigh the evidence or substitute its own judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V. Analysis
Notably, Plaintiff does not allege that the ALJ ignored or mis-weighed any evidence or that substantial evidence required the RFC to include a reading limitation. See Pl.'s Br., passim. Those arguments are therefore waived. See Bradley v. Colvin, 643 F. App'x 674, 675 (10th Cir. 2016). Instead, Plaintiff alleges only that the RFC is flawed because it did not precisely match the hypothetical question to the VE and the ALJ did not explain why she included a reading limitation in the hypothetical question but not the RFC. See Pl.'s Br., passim. The case law she relies upon, see id. at 5, does hold that a hypothetical question to a VE "must reflect with precisions all of [the claimant's] impairments," but it does not support her proposition that the hypothetical question cannot include additional impairments that the ALJ later omits from the RFC. Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996); see also Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). Moreover, the Tenth Circuit rejected such reasoning in Ruth v. Astrue, 369 F. App'x 929 (10th Cir. 2010). There the court explained:
[The plaintiff] claims the RFC findings are erroneous because they failed to mirror the limitations in the ALJ's post-hearing hypotheticals. Her theory is, when an ALJ poses a hypothetical to a VE, the ALJ is then bound to include the same hypothetical limitations in the claimant's RFC. She provides no authority for this contention.
[The plaintiff's] proposition misconstrues the purpose of a hypothetical in the context of an ALJ's disability determination. An ALJ poses one or more questions, asking the VE to assume a hypothetical individual with specified limitations that the ALJ may or may not ultimately determine to be applicable to the claimant. An ALJ is not bound by VE testimony in response to a hypothetical that fails to set forth only those impairments the ALJ has accepted as true. Thus, we fail to see how an ALJ could be bound by the hypothetical itself. By posing a particular hypothetical, an ALJ does not confine herself to making an RFC determination mirroring the hypothetical limitations.
Id. at 931. Accordingly, the Court finds no error in the ALJ's failure to precisely mirror Plaintiff's RFC to the hypothetical question to the VE. Relatedly, because Plaintiff does not allege that substantial evidence required the RFC to include a reading limitation, the Court finds no error in the ALJ's failure to explain why she included the reading limitation in the hypothetical question but not the RFC. See, e.g., Kirkpatrick v. Colvin, 663 F. App'x 646, 650 (10th Cir. 2016) ("Clearly, an ALJ doesn't commit error by omitting limitations not supported by the record"). Finally, because Plaintiff has offered no argument that the RFC is otherwise flawed,2 the Court declines to speculate as to whether Plaintiff could perform the relevant work if a reading limitation had been included.
RECOMMENDATION
For the reasons set forth above, it is recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 19, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
