Opinion
Case No. 02-2381-JWL
May 28, 2003.
MEMORANDUM ORDER
Plaintiff Steven Robertson brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the decision of defendant, the Commissioner of Social Security, to deny his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. According to plaintiff, defendant inaccurately assessed plaintiff's residual functional capacity, improperly discredited plaintiff's subjective complaints and failed to establish that plaintiff could perform other jobs despite his limitations. As explained in more detail below, the court rejects each of plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On September 7, 1999, plaintiff filed his application for a period of disability and disability insurance benefits, claiming disability since July 25, 1999 due to chest pain and shortness of breath incurred as a result of emphysema and nerve damage sustained after surgery for spontaneous pneumothorax; severe lower back pain associated with degenerative disc disease; and drowsiness, blurred vision and confusion — all side effects of his prescribed medications. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge ("ALJ") held a hearing on January 22, 2001, at which both plaintiff and his counsel were present. On June 18, 2001, the ALJ rendered a decision in which he determined that plaintiff was not under a "disability" as defined by the Social Security Act and, thus, denied all benefits to plaintiff. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council. The Appeals Council denied plaintiff's request for review on June 14, 2002, rendering the ALJ's decision the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)). The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Castellano, 26 F.3d at 1028). In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant. Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. §
423(d)(1)(A), 1382c(a)(3)(A) (1982)). The Social Security Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, see id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)), and the ALJ in this case followed the five-step process. 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. Id. Step one determines whether the claimant is presently engaged in substantial gainful activity. Id. If he is, disability benefits are denied. Id. If he is not, the decision maker must proceed to the second step. Id. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)). This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)). Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 416.921(b) (1986)). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. Id. at 751. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Id. The ALJ in this case concluded that the combination of plaintiff's impairments, including degenerative disc disease in the lumbar spine, mild chronic obstructive pulmonary disease, several pneumothoraxes, and a depressive disorder, were severe and, thus, the ALJ proceeded to step three.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291). If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. Id. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [him] from performing work he has performed in the past." Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 So. Ct. at 2291). If the claimant is able to perform his previous work, he is not disabled. Id. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past relevant work.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of his age, education, and work experience." See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291). At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs). At this step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that even though plaintiff suffered from several impairments, he nonetheless could perform a significant number of jobs in the state and national economies, including security system monitor, telephone solicitor, and administrative support worker.
IV. Analysis of Plaintiff's Specific Arguments
In his motion, plaintiff contends that the ALJ made three errors in reaching his decision — he inaccurately assessed plaintiff's residual functional capacity; he improperly evaluated plaintiff's subjective complaints concerning plaintiff's impairments and essentially found plaintiff's testimony on those subjects lacked credibility; and he did not satisfy his burden of proving that plaintiff can perform other jobs which exist in significant numbers in the national economy. The court addresses each of these arguments in turn.
A. Assessment of Plaintiff's Residual Functional Capacity
Plaintiff contends that the ALJ inaccurately assessed plaintiff's residual functional capacity. RFC is an administrative finding of what an individual can still do despite his or her limitations. Spicer v. Barnhart, 2003 WL 21000999, *2 (10th Cir. May 5, 2003) (citing 20 C.F.R. § 404.1545(a)). It assesses the extent to which an individual's "impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what [an individual] can do in a work setting." Id. (citing 20 C.F.R. § 404.1545(a)).
In his decision, the ALJ concluded that plaintiff had the RFC to perform a wide range of sedentary work. In so concluding, the ALJ found that plaintiff was able to lift and carry up to 3 pounds frequently and 10 pounds occasionally; that plaintiff was able to sit for about 6 hours in an 8-hour work day and to stand and walk for about 2 hours in an 8-hour work day; that plaintiff required the option to alternate sitting and standing during the work day in light of his back pain; that plaintiff needed to work in a climate-controlled environment due to his respiratory problems and, more specifically, plaintiff's testimony that he has difficulty breathing when it is hot or humid; that plaintiff was able to understand, remember and carry out simple work instructions despite moderate difficulties with concentration, persistence and pace; and that plaintiff was able to make simple work decisions, respond appropriately to supervisors and co-workers, handle routine changes, and work on a sustained and continuous basis.
Plaintiff complains that the ALJ's RFC determination failed to take into account all of plaintiff's limitations. See Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996) (RFC determination must accurately reflect the plaintiff's limitations). Specifically, plaintiff contends that the ALJ erred by failing to address plaintiff's use of a cane; by failing to state the frequency of plaintiff's need to alternate between sitting and standing; by failing to consider plaintiff's persistent shortness of breath, his lower back pain and his resulting need to rest throughout the day; by failing to address plaintiff's inability to squat or stoop; and by failing to address adequately plaintiff's mental limitations. The court will address each of plaintiff's concerns in turn.
Plaintiff also suggests in his papers that the ALJ erred by failing to attach to his decision a Psychiatric Review Technique (PRT) form. The ALJ, however, was not required to attach a PRT form to his decision. See 65 Fed. Reg. 50,746, 50,758 (Aug. 21, 2000) (final rules do not require ALJs or the Appeals Council to complete a PRT form or to attach the form to decisions).
Plaintiff testified at the hearing that he needs to use a cane for balance and for using stairs and he urges that the ALJ's RFC assessment should have reflected this limitation. This argument, however, lacks merit because the ALJ, in his hypothetical question to the vocational expert, specifically referenced plaintiff's use of a cane as "an assistive device." See Tr. at 64. Thus, the ALJ's failure to mention plaintiff's use of a cane in connection with the RFC assessment is irrelevant, as plaintiff's use of a cane was obviously considered by the vocational expert in determining that plaintiff was able to perform various sedentary jobs. See Garza v. Apfel, 1998 WL 778041, at *3 (10th Cir. Nov. 5, 1998) ("So long as the ALJ's findings about plaintiff's physical and mental limitations were reflected in the hypothetical question propounded to the VE at the first hearing, the ALJ could rely upon the first VE's testimony in determining at step five of the sequential analysis that plaintiff was not disabled." (citing Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996))).
Plaintiff also maintains that the ALJ, in violation of Social Security Ruling 96-9p, failed to determine how frequently plaintiff would need to alternate between sitting and standing. While Social Security Ruling 96-9p does require that the "RFC assessment . . . be specific as to the frequency of the individual's need to alternate sitting and standing," see SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996), that requirement was satisfied here. In that regard, the ALJ's RFC assessment and his hypothetical question to the vocational expert clearly contemplate that plaintiff required the option to stand or sit during the work day as often as needed to alleviate discomfort. Stated another way, it is clear that the ALJ contemplated that plaintiff would need a job that permitted him to alternate between sitting and standing at will. There is no error on this point.
According to plaintiff, the ALJ's RFC assessment is also deficient because it fails to reflect plaintiff's need to lie down and rest during the day — a need that plaintiff contends stems from his shortness of breath and back pain. While plaintiff testified at the hearing that he lies down for 6 hours out of 12 hours during the day, the ALJ's written order indicates that he found this testimony incredible in the absence of any evidence that plaintiff ever reported symptoms of this severity to his treating physicians. Moreover, the ALJ found it significant that, with respect to plaintiff's complaints of disabling back pain, plaintiff received minimal treatment for such pain. In fact, after conducting a follow up examination regarding plaintiff's back condition in November 2000 (one year after plaintiff had back surgery), plaintiff's physician noted that plaintiff should be able to continue all of his usual activities without restriction and recommended that plaintiff return for another evaluation in one year.
Similarly, with respect to plaintiff's complaints regarding shortness of breath, the ALJ noted that plaintiff had undergone only occasional follow up evaluations for this impairment since November 1999 and that plaintiff refused to follow the advice of his physician that plaintiff cease his one-pack-per-day smoking habit. Thus, it is clear that the ALJ concluded that plaintiff's testimony that he needed to lie down for 6 hours each day was exaggerated and inconsistent in light of the objective medical evidence in the record. Because this credibility determination is based on substantial evidence, the ALJ was not required to include this impairment in his RFC assessment. See Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987) (in assessing credibility of claimant's subjective claims of pain, the ALJ must consider such factors as a claimant's persistent attempts to find relief for his pain and regular contact with a doctor); Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (ALJ relied on appropriate factors and committed no error with respect to his assessment of plaintiff's subjective complaints of pain where ALJ noted the paucity of objective medical findings in the record, the claimant's failure to report disabling pain to her physicians and the fact that the claimant had not been treated by her physicians in the nine months prior to the hearing).
Plaintiff next challenges the RFC finding because it fails to reflect plaintiff's inability to stoop or squat without losing his balance. According to plaintiff, the ability to stoop at least occasionally is required in most sedentary occupations and, thus, must have been reflected in the RFC finding. However, there is apparently only one reference in the record regarding plaintiff's ability to stoop or squat and that reference is found in a report from an examination by Dr. Ramon Nichols, the Commissioner's consultative physician. While Dr. Nichols noted that plaintiff "falls forward" when "squatting to the knees," none of the other medical reports in the record, including those from plaintiff's treating physicians, mentions any limitations on plaintiff's ability to stoop or squat. Moreover, plaintiff did not testify at the hearing about any limitations in his ability to stoop or squat. It may well be, then, that the ALJ simply discounted the reference in Dr. Nichols' report. Such a conclusion would have been entirely appropriate in these circumstances. See Riddle v. Halter, 2001 WL 282344, at *1 (10th Cir. Mar. 22, 2001) (ALJ's determination was supported by substantial evidence despite the fact that it may have been inconsistent with findings in report by consultative physician where contents of consultative physician's report were inconsistent with other medical reports in the record, including those of the claimant's treating physicians); Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995) (a treating physician's opinion regarding the severity of a claimant's impairments is generally favored over that of a consulting physician).
In any event, none of the positions that the vocational expert identified as ones that plaintiff could perform (security system monitor; telephone solicitor; administrative support worker) suggest any need for excessive stooping or squatting. Thus, there is no reason to believe that the ALJ's ultimate conclusion in this case — that plaintiff could perform a significant number of jobs in the state and national economies — would have been any different had he included in his RFC assessment any limitations on plaintiff's ability to stoop or squat. See SSR 96-9p, 1996 WL 374185, at *8 (July 2, 1996) (while a complete inability to stoop would significantly erode the unskilled sedentary occupational base, a restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work).
Finally, plaintiff contends that the ALJ's RFC assessment failed to adequately assess the limitations arising from plaintiff's mental impairments. Specifically, plaintiff claims that the ALJ erred in disregarding the findings of Dr. Chester L. Day, the consultative physician used by the Commissioner for plaintiff's psychiatric examination. Dr. Day opined that plaintiff had a "poor ability" to deal with work stress; function independently; and maintain attention/concentration. Dr. Day further opined that plaintiff had a "poor ability" to understand, remember and carry out complex job instructions, a "poor ability" to understand, remember and carry out detailed but not complex job instructions, and only a "fair ability" to understand, remember and carry out simple job instructions. Dr. Day also marked the "poor ability" box in evaluating plaintiff's ability to demonstrate reliability. In his written order, the ALJ noted that he accorded "some weight, but not significant weight" to Dr. Day's opinion. To the extent the ALJ disregarded a portion of Dr. Day's opinion, he did so on the grounds that Dr. Day evaluated plaintiff on only one occasion; he gave excessive weight to plaintiff's subjective complaints without objective evidence of such limitations; and plaintiff never sought any regular treatment for psychiatric problems, was not receiving therapy, and had never been hospitalized for mental problems.
According to plaintiff, the ALJ incorrectly stated that plaintiff had never sought therapy because, in fact, plaintiff began receiving therapy in March 2001 — after Dr. Day's assessment and the hearing before the ALJ but prior to the ALJ's written order. Plaintiff further contends that the ALJ improperly substituted his opinion for that of Dr. Day. Contrary to plaintiff's suggestion, the ALJ's RFC assessment reflected plaintiff's mental limitations, including a "depressive disorder" that causes "moderate difficulties with concentration, persistence and pace." The RFC assessment also reflects Dr. Day's findings that plaintiff had a poor ability to understand, carry out and remember complex or detailed work instructions. In that regard, the ALJ's RFC assessment reflects only an ability to understand, carry out and remember simple work instructions. Moreover, to the extent the ALJ disregarded Dr. Day's findings, his stated reasons for doing so are supported by substantial evidence. See Foster v. Chater, 1995 WL 694132, at *2 (10th Cir. Nov. 24, 1995) (ALJ's rejection of consulting physician's opinion was supported by substantial evidence where opinion was based largely on plaintiff's subjective complaints of pain, which the ALJ had already rejected, rather than on objective findings on examination). The record further supports the ALJ's statement that, at the time of his written order on June 18, 2001, plaintiff had not "sought any regular treatment for psychiatric problems, was not receiving therapy, and had never been hospitalized for mental problems." While plaintiff did attend a handful of therapy sessions beginning in March 2001, his last session, according to the updated medical records sent by his counsel to the ALJ on June 11, 2001, took place on April 25, 2001. Thus, at the time the ALJ wrote his order, plaintiff was not receiving therapy and had not been to a therapy session in more than six weeks. In short, the ALJ's conclusions regarding Dr. Day's opinion are supported by substantial evidence and the ALJ's RFC assessment adequately accounted for those mental limitations that were supported by the record.
B. Plaintiff's Subjective Complaints
Plaintiff next asserts that the ALJ committed error by disregarding plaintiff's subjective complaints concerning his physical and mental limitations. Under the Tenth Circuit's decision in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), the ALJ must decide whether a claimant's subjective claims of pain are credible, considering such factors as a claimant's persistent attempts to find relief for his pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, the claimant's daily activities, and the dosage, effectiveness, and side effects of medication. Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66). Moreover, the ALJ must give specific reasons why he or she rejects a claimant's subjective complaints of pain. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence. Id. (citing Kepler, 68 F.3d at 390-91).
With respect to his back pain, plaintiff urges that the "evidence shows that [he] continues to suffer from back pain as well as certain limitations from his impairment, such as problems with balance and prolonged sitting, standing and walking." To the extent plaintiff is suggesting that the ALJ discounted entirely plaintiff's complaints of back pain, the ALJ's order belies that suggestion. As explained above, the ALJ acknowledged that plaintiff suffered from several limitations due to his back pain (including the need to alternate between sitting and standing at will) and those limitations are reflected in the ALJ's RFC assessment. While the ALJ did conclude that plaintiff had exaggerated the severity of his back pain, primarily plaintiff's claim that he needs to lie down for 6 hours out of 12 hours during the day due to his back pain, that conclusion, as explained above in connection with the ALJ's RFC assessment, is supported by substantial evidence. Clearly, the ALJ gave specific reasons for discounting plaintiff's claim with respect to the severity of his back pain and those reasons are based on appropriate factors set forth in Luna. As such, there was no error in discounting plaintiff's testimony concerning the nature and extent of his back pain. See Barnett, 231 F.3d at 690 (ALJ relied on appropriate factors and committed no error with respect to his assessment of plaintiff's subjective complaints of pain where ALJ noted the paucity of objective medical findings in the record, the claimant's failure to report disabling pain to her physicians and the fact that the claimant had not been treated by her physicians in the nine months prior to the hearing).
With respect to his pulmonary problems, plaintiff contends that the evidence demonstrates that plaintiff continues to experience pain in his chest as well as shortness of breath. Again, the ALJ, in his written order, clearly acknowledged that plaintiff suffers from certain limitations related to his respiratory problems and his RFC assessment reflects those limitations, including the restriction that plaintiff work in a climate controlled environment and the restriction that plaintiff remain seated for most of the work day. In discounting plaintiff's testimony concerning the severity of his pulmonary problems, however, the ALJ specifically noted that plaintiff had received "minimal and conservative treatment" for those problems since November 1999 including "only occasional follow up evaluations." The ALJ also found it significant that plaintiff refused to give up his one-pack-per-day smoking habit despite his physician's recommendation that he do so. Because the ALJ relied on appropriate factors in rejecting plaintiff's testimony concerning the severity of his pulmonary problems, there was no error.
Plaintiff also contends that the evidence supported his testimony concerning his mental impairments, including depression. As noted above, however, the ALJ's RFC assessment reflected plaintiff's mental limitations, including a "depressive disorder" that causes "moderate difficulties with concentration, persistence and pace." While plaintiff complains the ALJ's findings are inconsistent with Dr. Day's evaluation, the court has already concluded that the ALJ's decision to discount a portion of Dr. Day's opinion is supported by substantial evidence. Moreover, while plaintiff in his papers highlights that he has been diagnosed as having "agitated depression" and "neurotic depression," he does not attempt to show how these particular labels suggest a functioning capacity different from that assessed by the ALJ.
Finally, plaintiff challenges two general assessments made by the ALJ with respect to plaintiff's credibility. In that regard, the ALJ concluded that the testimony presented at the hearing by plaintiff and his wife regarding plaintiff's activities of daily living were inconsistent with a form completed by plaintiff in March 2000 and that the inconsistency undermined plaintiff's credibility. For example, plaintiff testified at the hearing that he performs only a few light housekeeping chores such as vacuuming once per week and doing laundry a couple of times each month. He further testified that he did some of the cooking, but noted that he could not remember where things are located in the kitchen. In contrast, in an "Activities of Daily Living" form completed by plaintiff on March 15, 2000 (prior to the hearing), plaintiff reported that he does five or six loads of laundry each week, cooks full meals with his wife four times each week, and cleans the house two or three times each week. Plaintiff also noted on the form that his hobbies included gardening, fishing and camping and that he maintained enough concentration to watch television and play board games with friends. According to plaintiff, the ALJ's conclusion that plaintiff's testimony was inconsistent with the form completed by plaintiff was an unreasonable one because the main thrust of both plaintiff's testimony and the contents of the form was that plaintiff is unable to do strenuous household chores. Plaintiff's argument is misplaced. While both plaintiff's testimony and the form may indicate that plaintiff cannot engage in strenuous household chores, the point made by the ALJ is that plaintiff's testimony with respect to those chores that he is able to complete was inconsistent with what he said he could accomplish on the relevant form and that the inconsistency reflected poorly on plaintiff's overall credibility. This conclusion was not in error.
The ALJ also stated in his order that plaintiff's "work history does not speak to his benefit on the issue of credibility" because his earnings records showed a sporadic work history prior to his alleged onset date of disability and that plaintiff engaged in substantial gainful activity in only 5 of the last 15 years. Plaintiff urges, and the Commissioner seems to concede, that the ALJ misconstrued the record in this regard. While the record indicates that no money was paid into social security by plaintiff for a number of years, plaintiff was apparently working for the federal government during those years and, thus, did not pay any amounts into social security. Nonetheless, because plaintiff's work history was just one of numerous factors on which the ALJ based his credibility assessment, the court concludes that any error made by the ALJ in this regard is harmless, particularly since this factor does not bear on plaintiff's physical or mental limitations. See, e.g., Smith v. Barnhart, 2002 WL 1023678, at *1 n. 3 (10th Cir. May 22, 2002) (applying harmless error doctrine in context of social security case); Arroyo v. Apfel, 1999 WL 1127656, at *2 (10th Cir. Dec. 9, 1999) (same).
In sum, because the record reveals substantial evidence to support the ALJ's credibility assessment and the reasons underlying that assessment, the court will not disturb the ALJ's findings.
C. Burden of Proving that Plaintiff Can Perform Other Jobs in the National Economy
Plaintiff's final argument is that the ALJ's hypothetical question eliciting the vocational expert's (VE) testimony that there were jobs existing in the national economy that plaintiff remained capable of performing failed to include all of plaintiff's limitations and, thus, the VE's testimony fails to constitute substantial evidence supporting the denial of benefits. A vocational expert's testimony can provide a proper basis for an ALJ's determination where the claimant's impairments are reflected adequately in the hypothetical inquiries to the expert. Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). The ALJ, however, is required to accept and include in the hypothetical question only those limitations supported by the record. Shepherd v. Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999).
According to plaintiff, the ALJ's hypothetical questions omitted several of plaintiff's significant limitations, including plaintiff's use of a cane, his inability to stoop or squat, his need to rest during the day and his poor ability to perform various mental activities. As described above, the ALJ's hypothetical questions, in fact, did include reference to plaintiff's use of a cane. With respect to plaintiff's alleged inability to stoop or squat, his need to rest during the day and his mental limitations, the court has explained above why the ALJ's decision not to include those limitations in his RFC assessment (and, consequently, his hypothetical questions) is supported by substantial evidence. Thus, because the ALJ included in his hypothetical questions all of the limitations supported by the record, see Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996), the VE's testimony elicited by those hypothetical questions provided substantial evidence to support the denial of benefits.
Plaintiff also contends that the ALJ's hypothetical questions did not even reflect the same abilities and limitations set forth in the ALJ's allegedly deficient RFC assessment. Plaintiff, however, has not identified any limitations that were contained in the RFC assessment that were not included in the ALJ's hypothetical questions. The court has carefully reviewed the ALJ's RFC assessment, has compared that assessment to the ALJ's hypothetical questions, and finds no disparity. See Tr. 64-66.
In sum, having carefully reviewed the record in this case and having considered plaintiff's arguments in light of the record, the court concludes that substantial evidence supports defendant's decision to deny Mr. Robertson's application for disability benefits and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment (doc. #11) is denied and defendant's decision denying plaintiff disability benefits is affirmed.
IT IS SO ORDERED.