KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court
Plaintiff alleges that she became disabled on December 19, 2011.
Born on August 3, 1972, Plaintiff was 39 years old when she filed her application for supplemental security income. Tr. 22, 117. The ALJ determined that, Plaintiff "worked after the application date but this work activity did not rise to the level of substantial gainful activity." Tr. 12. The ALJ further found that Plaintiff "has at least a high school education and is able to communicate in English." Tr. 22. The ALJ determined that "[t]ransferability of job skills is not material to the determination of disability. . . ." Tr. 22. Regarding Plaintiff's alleged disabilities, the ALJ found that she "has the following severe impairments: Affective disorder; Personality disorder; Scoliosis; and Torticollis [ ]." Tr. 12. However, the ALJ concluded that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926)." Tr. 12. After reviewing the information in the record, the ALJ concluded that Plaintiff has the residual functional capacity ("RFC")
Tr. 14. Based on the RFC and the testimony of Lee O. Knutson (the "VE"), an impartial vocational expert, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform. . . ." Tr. 19. Specifically, based on the testimony of the VE, the ALJ concluded that Plaintiff could perform the representative occupations of maid, cleaner/housekeeper, non-postal service mail sorter or mail-room clerk, and machine tender. Tr. 23. He therefore found Plaintiff not disabled at step five of the sequential evaluation. Tr. 23.
Pursuant to the Act:
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(a); see also Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The existence of a qualifying disabling impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic" findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).
"When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision of the Commissioner by examining the administrative record and determining "whether the [ALJ's] factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F. App'x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). Thus, even when some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views," even if the Court may have "made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).
The Social Security Administration uses a five-step framework to determine whether a claimant meets the necessary conditions to receive Social Security benefits. See 20 C.F.R. § 416.920. The claimant bears the burden of proof at steps one through four, and if the claimant fails at any of these steps, consideration of any subsequent steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) ("If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary."). The Commissioner bears the burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is "presently engaged in substantial gainful activity." Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two, whether a claimant has "a medically severe impairment or impairments." Id. "An impairment is severe under the applicable regulations if it significantly limits a claimant's physical or mental ability to perform basic work activities." Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next, at step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition "listed in the appendix of the relevant disability regulation," i.e., the "Listings." Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). "If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent her from performing her past relevant work." Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). "Even if a claimant is so impaired, the agency considers, at step five, whether she possesses the sufficient [RFC] to perform other work in the national economy." Id.
An ALJ must consider all evidence and explain why he or she finds a claimant not disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need not specifically "reference everything in the administrative record." Wilson, 602 F.3d at 1148. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1140 (internal quotation marks omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence "if it is overwhelmed by other evidence in the record. . . ." Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In other words, the Court's determination of whether the ALJ has supported his ruling with substantial evidence "must be based upon the record taken as a whole." Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further, evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Plaintiff requests judicial review of the ALJ's decision denying her supplemental social security income benefits. Brief [#12] at 1. Plaintiff brings three main challenges to the ALJ's findings, with multiple arguments offered in support of each challenge. First, Plaintiff argues that the "ALJ's analysis of [Plaintiff's] treating therapist's opinion that she has significant mental limitations greater than those found by the ALJ is inconsistent with Agency policy and the law of this circuit. . . ." Id. at 1, 6-13. Second, Plaintiff maintains that the "ALJ's assignment of little weight to [Plaintiff's] mental health case specialist is not supported by substantial evidence where, as here, the underlying evidence simply does not support the assertions made by the ALJ with respect to the supposed `overestimation' of her limitations by her therapist." Id. at 1, 14-30. As part of this second argument, Plaintiff also challenges the ALJ's assignment of "significant weight" to the opinion of the state agency nonexamining consultant. Id. at 3, 27-30. Finally, Plaintiff argues that "the ALJ's mental RFC only addresses her social limitations" even though the ALJ found that Plaintiff has "significant limitations of her ability to concentrate, persist at tasks, and maintain pace. . . ." Id. at 22-26. The Court will address each of these arguments in turn.
Plaintiff argues that the ALJ erred by not including all of the limitations Plaintiff's treating therapist found Plaintiff suffered from when the ALJ determined Plaintiff's RFC. Brief [#12] at 6. Specifically, Plaintiff maintains that Valerie Etter's, LCSW (""Etter"), May 21, 2013 opinion that Plaintiff has "extreme" limitations in certain work-related areas of functioning and "marked" limitations in other work-related areas of functioning is supported by the evidence. Id. at 7-8. She further argues that "the ALJ's failure to account for the additional limitations proven in the assessment of [Plaintiff's] treating mental health source is clear error, requiring remand." Id. at 8.
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ and the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2001). However, the conclusions reached by the ALJ must be reasonable and consistent with the evidence. See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994) (explaining that the Court must affirm if, considering the evidence as a whole, there is sufficient evidence which a reasonable mind might accept as adequate to support a conclusion). An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 401.1527(d)).
In this case, the ALJ provided a very thorough analysis of the evidence he considered when determining Plaintiff's RFC. Tr. 14-22. The ALJ discussed the medical records; Plaintiff's testimony; the testimony of Plaintiff's friend, Robert Fowler ("Fowler"); Ms. Etter's opinion; the opinion of the psychologist employed by the state agency, Dr. Gayle Frommelt, Ph. D ("Frommelt"); and the opinion of the Single Decision-Maker ("SDM") employed by the state agency, Shari Gerson, to consider Plaintiff's physical complaints. Tr. 14-22.
Specifically, with regard to Ms. Etter's May 21, 2013 opinion, the ALJ explained:
Tr. 20-21. This portion of the ALJ's Decision makes clear that the ALJ considered Ms. Etter's opinion, but found that the evidence in the record did not support her conclusion that Plaintiff's mental disability has the extreme implications on Plaintiff's life that Ms. Etter found it to have.
Plaintiff argues that "[a]lthough an opinion's `inconsistency' with the underlying record is a facially valid reason for rejecting the opinion, when there are no `obvious inconsistencies' between the opinion and the treatment records, the inconsistency finding is not supported by substantial evidence and should be reversed." Brief [#12] at 17. As Plaintiff concedes, consistency with the record as a whole is a legitimate basis for determining the weight to be afforded an opinion. Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) ("In determining the weight to be given an opinion, the ALJ must consider the consistency between that opinion and the record as a whole."); see also 20 C.F.R. § 416.927 ("[W]e consider the following factors in deciding the weight we give to any medical opinion. . . . (4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). Plaintiff appears to take this concept and limit it to consistency with "the treatment records," Brief [#12] at 17, however, that is not the standard. Here, the ALJ very carefully analyzed the record as a whole and determined that Ms. Etter's opinion was inconsistent with Plaintiff's testimony and treatment records. The Court finds that the ALJ's summary of Plaintiff's treatment records and testimony is accurate. See, e.g., Tr. 223 ("She told me that she was never angry there, she was always happy and chipper, and did not feel like anyone was harming her at all."); Tr. 296-97 (February 4, 2013 mental status examination summary); Tr. 298 ("Survivor; has network of friends who help her out . . ."). Therefore, the Court finds that the ALJ's decision to afford little weight to Ms. Etter's conclusions was not error. To the extent Plaintiff is asking the Court to draw its own conclusions about the record, that is not the Court's role. Hackett, 395 F.3d at 1173.
Plaintiff also attacks the ALJ's assignment of little weight to Ms. Etter's conclusions because the ALJ noted that Ms. Etter "is not an `acceptable medical source' and only `acceptable medical sources' can give medical opinions. . . ." Tr. 20. Pursuant to C.F.R. § 416.927(a)(1),
C.F.R. § 416.927(a)(1). As a Licensed Clinical Social Worker, Ms. Etter is not an "acceptable medical source." See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164-65 (10th Cir. 2012) (noting that a GAF score "assessed by a counselor" was not prepared by an "acceptable medical source" and finding that it was not an error for the ALJ assigned "only modest weight" to the counselor's GAF score assessment); Harris v. Colvin, No. 13-cv-01107-REB, 2014 WL 4472414, at *3-4 (D. Colo. Sept. 11, 2014); see generally SSR 06-03p, 2006 WL 2329939 (defining "acceptable medical sources" and noting that "[m]edical sources who are not "acceptable medical sources" include "licensed clinical social workers). While Plaintiff argues that the ALJ was required to evaluate Ms. Etter's opinion using the same criteria he would use to evaluate the opinion of an acceptable medical source, namely the factors discussed in C.F.R. § 416.927(c), Brief [#12] at 19, the ALJ appears to have done just that.
Medical opinions must be weighed as outlined in 20 C.F.R. § 416.927(c). This provision requires an ALJ to consider: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. 20 C.F.R. §416.927(c). Notably, the ALJ need not discuss each individual factor. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Nevertheless, the ALJ must consider every factor in determining the weight to assign a medical opinion, and "give good reasons in the notice of determination or decision for the weight he ultimately assigns the opinion." Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal quotation marks, internal brackets, and citation omitted). Here, the ALJ very specifically noted that he found Ms. Etter's opinion to be inconsistent with the record. As discussed above, that is a legitimate reason for determining to give an opinion less weight.
Plaintiff also takes issue with the ALJ's consideration of the GAF
Tr. 20. (internal brackets omitted). Plaintiff maintains that "the ALJ plainly misunderstands the import of a `snapshot.' One snapshot may only prove that a person was having `a bad day' however, in this case, the record of GAF scores . . . offers numerous snapshots, which present a consistent picture of inability to function on a `regular and continuous basis.'" Brief [#12] at 22.
The ALJ noted that he afforded "some weight" to the GAF scores, but properly explained that the GAF scores are "not determinative of overall disability." Tr. 20; see Luttrell v. Astrue, 453 F.App'x 786, 792 n.4 (10th Cir. 2011) (unpublished) ("This court has repeatedly noted . . . that generalized GAF scores, which do not specify particular work-related limitations, may be helpful in arriving at an RFC but are not essential to the RFC's accuracy." (internal quotation marks and citations omitted)); Lopez v. Barnhart, 78 F.App'x 675, 678 (2003) (unpublished) ("Contrary to claimant's contention, a GAF score of 40 may indicate problems that do not necessarily relate to the ability to hold a job. Thus, standing alone, the GAF score does not evidence an impairment seriously interfering with claimant's ability to work." (citations omitted)); Howard v. Comm'r of Soc. Sec., 276 F.3d 241 (6th Cir. 2002) ("While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC's accuracy."). The Court finds no error with the ALJ's assigned of "some weight" to the GAF scores in the record and his consideration of them in the context of the overall record. Plaintiff's argument that the ALJ may have overlooked or misrepresented the GAF scores, Brief [#12] at 21, lacks merit.
On August 21, 2012, Dr. Frommelt, a nonexamining agency psychologist, reviewed Plaintiff's records as a result of Plaintiff's application for supplemental security income. Tr. 62-73. Dr. Frommelt reviewed Plaintiff's records, including a May 3, 2012 opinion from Ms. Etter. Tr. 63-65, 68. Dr. Frommelt applied the criteria of the Listings to her analysis of Plaintiff. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listings); 20 C.F.R. § 416.925(a); Soc. Sec. Ruling 83-19, 1983 WL 31248, at *1 (SSA 1983). Mental disorders are analyzed under § 12.00 of the Listings, which defines each of the nine diagnostic categories identified therein by three criteria: a statement describing the disorder (the "Capsule Definition"), a set of medical findings ("Paragraph A") and a set of impairment-related functional limitations ("Paragraph B").
The ALJ considered Dr. Frommelt's conclusions and
Tr. 21.
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ and the Commissioner. Hackett, 395 F.3d at 1173; White, 287 F.3d at 905, 908, 909. However, the conclusions reached by the ALJ must be reasonable and consistent with the evidence. See Glenn, 21 F.3d at 988 (explaining that the Court must affirm if, considering the evidence as a whole, there is sufficient evidence which a reasonable mind might accept as adequate to support a conclusion). Further, "[a]lthough the ALJ need not discuss all of the evidence in the record, he may not ignore evidence that does not support his decision, especially when that evidence is `significantly probative.'" Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)).
Notably, Dr. Frommelt, an agency psychologist, never met with Plaintiff. Instead, her opinion was based only on a review of Plaintiff's treatment records and Ms. Etter's opinion. "The opinion of an examining physician is generally entitled to less weight than that of a treating physician, and the opinion of an agency physician who has never seen the claimant is entitled to the least weight of all." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(1), (2); 20 C.F.R. § 416.927(1), (2); Soc. Sec. R. 96-6p, 1996 WL 374180, at *2). However, an ALJ "may not ignore these opinions and must explain the weight given to these opinions in their decisions," Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *2, and may give weight to a non-examining, consulting doctor, like Dr. Frommelt, if he provides a "legally sufficient explanation for doing so." Id.; see also 20 C.F.R. §§ 416.927(c), 416.927(e)(2)(ii) ("[T]he administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician, psychologist, or other medical specialist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us."). Here, there was no treating physician and the ALJ explained that Dr. Fommelt's opinion "is consistent with the evidence of record." Tr. 21. Consistency with the record as a whole is a legitimate basis for determining the weight to be afforded an opinion. Pisciotta, 500 F.3d at 1078 ("In determining the weight to be given an opinion, the ALJ must consider the consistency between that opinion and the record as a whole."). Further, the ALJ provided specific examples of portions of the record that support Dr. Frommelt's conclusions. Tr. 21. To the extent Plaintiff reviews the evidence Dr. Frommelt considered when reaching her conclusions and asks the Court to reach a different conclusion from the doctor, Brief [#12] at 27-29, that is not the Court's role.
Plaintiff makes one additional attack on Dr. Frommelt's analysis. She argues that
Brief [#12] at 29 (emphasis in original). Plaintiff relies on a variety of nonbinding cases to support this argument. The main case on which she relies is Frankl v. Shalala, 47 F.3d 935 (8th Cir. 1995). In that case the Eighth Circuit found that because the RFC assessment forms completed by a nonexamining agency physician "were not based on the full record in this case," those forms "cannot constitute substantial evidence that[ the plaintiff] was capable of performing the full range of light work at the time of the hearing. . . ." Id. at 938. This nonbinding case was discussed by Senior District Judge Crow of the District of Kansas last year. He correctly explained that "Frankl does not establish a rule that medical opinions become stale after a year and lose their persuasive force. Instead the ALJ accepted the plaintiff's testimony that his condition had changed after the forms had been completed, and no contradictory medical evidence of the plaintiff's RFC at the time of the hearing was presented." Lee v. Colvin, No. 12-2559-SAC, 2013 WL 4549211, at *3 (D. Kan. Aug. 28, 2013); see also O'Bannon v. Colvin, Civil No. 1:13-cv-207-DBH, 2014 WL 1767128, at *7 (D. Me. April 29, 2014). Therefore, the question is not whether Dr. Frommelt's opinion was stale, but whether the treatment records that post-dated Dr. Frommelt's assessment would have changed the conclusions.
Dr. Frommelt examined the following information when reaching her conclusions: a May 3, 2012 opinion of Ms. Etter, Tr. 64, 67-68; a variety of documents provided by Plaintiff, Tr. 63-64; and treatment records completed by Plaintiff's therapists at Colorado West Mental Health dated October 20, 2011; February 6, 2012; March 22, 2012; and May 3, 2012, Tr. 65. Plaintiff offers no argument that her condition deteriorated after May 3, 2012, the most recent of the records considered by Dr. Frommelt. Further, the treatment records show only two counseling sessions that post-date the records reviewed by Dr. Frommelt. Tr. 295-301. The treatment notes from Plaintiff's July 15, 2012 counseling session does not note any changes in her condition. Tr. 299-301. In fact, the primary purpose of the appointment was to refer her to the Center for Mental Health in Delta County because she relocated to Cedaredge, Colorado. Tr. 299. Plaintiff's February 4, 2013 session with Ms. Etter was a "6 month assessment." Tr. 295. Ms. Etter noted that "Heather has been certified as a medical coder and would like to pursue aspirations for rejoining this career track while getting more school related to this area." Tr. 295. She also wrote that "Heather is feeling safe in her current environment and has access to medical care." Tr. 296. In her "Diagnostic Formulation," Ms. Etter explained:
Tr. 297. The Mental Status Examination noted many "normal" and "fair" assessments. Tr. 296-97. The Risk Assessment portion of the treatment notes indicated that there was "no risk" of suicide, homicide [or] grave[ ] disab[ility]." Tr. 297. In addition, in her summary and recommendations, Ms. Etter noted:
Tr. 298. Nothing in these records indicates that Plaintiff's condition deteriorated in any way and that, as a result, Dr. Frommelt's opinion should not have been given any weight by the ALJ. Therefore, the Court finds that the ALJ's assignment of "significant weight" to certain conclusions reached by Dr. Frommelt was not error.
Finally, Plaintiff argues that "the ALJ's mental RFC only addresses her social limitations" even though the ALJ found that Plaintiff has "significant limitations of her ability to concentrate, persist at tasks, and maintain pace. . . ." Brief [#12] at 22-26. With regard to concentration, persistence, or pace, the ALJ found that Plaintiff
Tr. 13. Ultimately, the ALJ found that Plaintiff "has the [RFC] to perform light work as defined in 20 CFR 416.967(b) except no public contact work." Tr. 14. Defendant admits that "there were no concentration, persistence, or pace limitations in Plaintiff's" RFC. Response [#13] at 14. Defendant argues, however, that "the jobs identified by the [VE] were all unskilled" and that "the State agency psychologist opined that Plaintiff retained the [RFC] to perform the low end of semi-skilled work." Id. Defendant further maintains that "even though the [RFC] did not include any limitations on the ability to concentrate, Plaintiff cannot show that the ALJ's decision would have been different had the [RFC] included limitations on the ability to concentrate." Id. at 15 (citing Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)).
The issue here is that Plaintiff believes that because the ALJ found a moderate impairment at step three of his assessment, he must explicitly discuss or state that impairment and an accommodation for that impairment in the RFC. Plaintiff does not provide legal authority for this proposition and the applicable authority does not appear to include such a requirement. The Social Security Administration ("SSA") has made clear that the "RFC assessment must be based on all of the relevant evidence in the case record. . . ." SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996), however, it does not require the ALJ to explain the RFC in any particular way or to explicitly incorporate his findings at steps two and three into his written RFC at step four. The SSA's policy states:
SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
The Southern District of New York recently addressed this question in Roman Jimenez v. Colvin, No. 12 Civ. 6001(PGG)(FM), 2014 WL 572721 (SDNY Feb. 13, 2014). That court explained:
Id. at *14. In addition, the Tenth Circuit recently held that the ALJ was not required to include a doctor's Paragraph B criteria opinions in his RFC assessment because the limitations identified in Paragraph B "are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process." Anderson v. Colvin, 514 F.App'x 756, 763 (10th Cir. 2013) (unpublished) (quoting SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996)). Therefore, the Court does not find support for Plaintiff's position and finds that the ALJ did not err by not explicitly noting a concentration, persistence, or pace limitation in his RFC.
The record contains substantial evidence from which the ALJ concluded that Plaintiff was not entitled to benefits under the Act during the time relevant to this case. The ALJ's decision was based upon substantial evidence and is free of reversible legal error. Accordingly,
IT IS HEREBY
IT IS FURTHER
