Khan v. Bisignano

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MUHAMMAD NAEEM KHAN,
Plaintiff,
v.
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
REPORT AND RECOMMENDATION TO
AFFIRM COMMISSIONER’S DECISION
Case No.: 2:25-cv-00126-HCN-CMR
Judge Howard C. Nielson, Jr.
Magistrate Judge Cecilia M. Romero
This case is referred to the undersigned from Judge Howard C. Nielson, Jr. pursuant to 28
U.S.C. § 636(b)(1)(B) (ECF 7). Plaintiff Muhammad Naeem Khan (Plaintiff or Mr. Khan) seeks
judicial review of the determination of the Commissioner of the Social Security Administration
(the Commissioner or Defendant) denying his application for disability insurance benefits (DIB).
Before the court is Plaintiff’s Motion for Review of Agency Action (Pl. Br.) (ECF 18) and
Defendant’s Response (Def. Br.) (ECF 19). Plaintiff filed no reply, and the time to do so has
passed. After careful consideration of the written briefs, the administrative record, and relevant
legal authorities, the undersigned RECOMMENDS that the court DENY Plaintiff’s Motion for
Review of Agency Action (ECF 18) and AFFFIRM the Commissioner’s decision.
I. 	LEGAL STANDARDS
A. Standard of Review
The court reviews the Commissioner’s decision to determine whether substantial evidence
in the record as a whole supports the factual findings and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); see also, e.g., Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
This statutory standard of review defers to the presiding Administrative Law Judge (ALJ), “who
has seen the hearing up close.” Biestek v. Berryhill, 139 S. Ct. 1148, 1157 (2019). “[W]hatever the
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meaning of ‘substantial’ in other contexts,” in the context of judicial review of Social Security
decisions, the threshold “is not high.” Id. at 1154. 	It is simply “more than a mere scintilla”
of evidence. Id. (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229
(1938)). “It means—and means only—‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Id. (quoting Consolidated Edison, 305 U.S. at 229)); see
also, e.g., Lax, 489 F.3d at 1080, 1084. In reviewing the ALJ’s decision, the court may neither
reweigh the evidence nor substitute its judgment for that of the ALJ. See Hendron v. Colvin,
767 F.3d 951, 954 (10th Cir. 2014).
I. 	BACKGROUND
Plaintiff was 49 years old on his disability onset date of August 3, 2021 (ECF 8, Certified
Administrative Record (Tr.) 252–58). Plaintiff filed an application for DIB on November 6, 2021,
alleging disability due to: right parietal intracranial hemorrhage (stroke), seizures, hypertension,
memory problems, Bell's palsy, cerebral edema, rhabdomyolysis, cognitive issues, poor visual
recognition in left visual space, poor attention span, depression, and Hepatitis B (Tr. 96). In
determining whether a claimant qualifies as disabled, the Commissioner employs a five-part
sequential evaluation. See 20 C.F.R. § 404.1520(a)(4). In a decision dated September 3, 2024, the
ALJ determined Plaintiff had severe impairments of status-post cerebrovascular accident,
degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, a
neurocognitive disorder, a seizure disorder, major depressive disorder, and generalized anxiety
disorder (Tr. 20–21). The ALJ found that Plaintiff’s hypothyroidism, prediabetes, and obstructive
sleep apnea were non-severe impairments (Tr. 21).
The ALJ considered Plaintiff’s physical impairments and found that the requirements of
the appropriate listings were not met, including degenerative disc disease of the lumbar and
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cervical spine under listings 1.15 and 1.16, seizure disorder under listing 11.02, and status-post
cerebrovascular accident under listing 11.04 (Tr. 21–22). The ALJ considered Plaintiff’s mental
impairments under listings 12.02, 12.04, and 12.06, and paragraph B and C criteria finding none
applied except moderate limitation in: (1) understanding, remembering, or applying information;
(2) concentrating, persisting, or maintaining pace; and (3) adapting or managing oneself (Tr. 22);
and mild limitation in interacting with others (Tr. 22–23).
Next, at step four, the ALJ determined Plaintiff had the residual functional capacity (RFC)
to perform light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations including:
[O]ccasionally lift and carry 20 pounds, frequently 10 pounds, sit for approximately
6 hours in an 8 hour day and stand and walk approximately 6 hours in an 8 hour
day. . .The claimant is limited to work that consists of only simple tasks. He can
have occasional interaction with the public, occasional interaction with co-workers,
and occasional interaction with supervisors, defined as requiring supervisor critical
checking of the claimant’s work. The claimant would be able to deal with only
occasional changes in a routine work setting.
(Tr. 23). Given Plaintiff’s RFC, the ALJ found that he could not perform past relevant work as an
electronics assembler and a chemical preparer (Tr. 30). At step five, the ALJ found that Plaintiff
could nonetheless perform jobs existing in significant numbers in the national economy, including
electrode cleaner, electronics worker, and electronic inspector (Tr. 31). The ALJ therefore
concluded that Plaintiff was not disabled and denied DIB (Tr. 32). The ALJ’s decision is now the
final decision of the Commissioner for purposes of judicial review, and this court has jurisdiction
to review it under 42 U.S.C. § 405(g).
II. 	ANALYSIS
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence and should
be set aside because the ALJ (1) failed to adequately develop the record, and (2) failed to consider
all of Plaintiff’s physical and mental limitations when determining his RFC (Pl. Br. at 15).
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Specifically, Plaintiff asserts that the ALJ failed to consider the following limitations, which will
be referred to herein as the “Contested Limitations”: limitations in concentrating, thinking,
remembering, staying on task, starting and following through on tasks, completing tasks without
needing to take frequent breaks or long periods of rest, and absenteeism (Pl. Br. at 13, 37). The
court finds that substantial evidence exists in the record to support the ALJ’s decision and that the
correct legal standards were applied.
A. Plaintiff’s 	argument 	that 	the 	record 	was 	not 	adequately 	developed 	is
inconsistent with his other arguments and inadequately briefed.
The ALJ is “responsible in every case ‘to ensure that an adequate record is developed
during the disability hearing consistent with the issues raised[.]’” Hawkins v. Chater, 113 F.3d
1162, 1164 (10th Cir. 1997) (quoting Henrie v. United States Dep’t of Health & Human Servs., 13
F.3d 359, 360–61 (10th Cir. 1993)). “The duty to develop the record is limited to ‘fully and fairly
develop[ing] the record as to material issues.’” Id. at 1168 (quoting Baca v. Department of Health
& Human Servs., 5 F.3d 476, 479–80 (10th Cir. 1993)). This duty is necessary as it ensures that
“the ALJ is informed about ‘facts relevant to his decision and [learns] the claimant’s own version
of those facts.’” Henrie, 13 F.3d at 361 (quoting Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.
1987) (quoting Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983)).
Here, if Plaintiff is asserting that a material issue in the case was not adequately developed,
it is unclear what that issue is. To the extent Plaintiff asserts that the record was undeveloped
regarding the Contested Limitations, that assertion is undercut by Plaintiff’s other arguments. By
asserting a failure to develop the record, Plaintiff necessarily argues that there was insufficient
evidence for the ALJ to make a proper RFC finding, whether in favor of or against Plaintiff. This
is not the argument that Plaintiff is asserting in his brief. Plaintiff specifically asserts that there
was sufficient evidence regarding the Contested Limitations and that the ALJ erred by not
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considering such evidence when determining Plaintiff’s RFC (Pl. Br. at 40). Accordingly, the court
determines that Plaintiff’s argument regarding the adequacy of the record is contradicted by his
other, more substantive arguments and is improperly briefed.
B. The ALJ’s RFC determination is supported by substantial evidence.
Plaintiff’s next argument is that the ALJ failed to consider all of Plaintiff’s physical and
mental limitations when determining Plaintiff’s RFC, specifically evidence regarding the
Contested Limitations (Pl. Br. at 15). In support, Plaintiff asserts that the ALJ’s analysis failed to
adequately consider: (1) Plaintiff’s subjective testimony regarding his reported symptoms, (2) the
medical evidence in the record, and (3) other evidence in the record (see Pl. Br. at 30–39). The
court addresses Plaintiff’s arguments below to determine whether the ALJ’s RFC determination
was supported by substantial evidence.
i. 	The ALJ properly considered Plaintiff’s subjective testimony regarding his
reported symptoms.
The Social Security Administration’s regulations require that an ALJ decision must specify
the reasons for how much weight is assigned to the individual’s symptoms, ensure the decision
aligns with and is supported by the evidence, and be clearly explained so that both the individual
and future reviewers can understand how the adjudicator assessed the symptoms. Toledo v.
Commr., SSA, No. 24-5001, 2024 WL 4357913, at *2 (10th Cir. Oct. 1, 2024) (quoting SSR 16-
3p, 2017 WL 5180304, at *10 (Oct. 25, 2017)). Moreover, an ALJ is not supposed to accept all
the claimant’s subjective allegations without question; instead, they must evaluate the severity,
persistence, and limiting effect of the symptoms by considering the whole record. See 20 C.F.R. §
404.1529(c)(4) (“[W]e will evaluate your statements in relation to the objective medical
evidence.”)).
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During the hearing, Plaintiff testified about his symptoms, including their intensity,
persistence, and limiting effects, and as a result, he described the following impairments: (1)
inability to go out alone because of seizures (Tr. 50); (2) tiredness and weakness resulting from
the multiple medications he has been prescribed, causing him to sleep during the day and feel dizzy
(Tr. 55, 59); (3) frequent diarrhea and frequent urination also because of the medications (Tr. 58);
(4) back, neck, and knee pain that cannot be relieved through surgery because of his seizures,
causing him to receive steroid injections for the pain (Tr. 56); and (5) inability to stand for too long
or even sit for too long because of back and hip pain (Tr. 66).
Plaintiff acknowledges that the ALJ addressed Plaintiff’s testimony and determined that
Plaintiff’s statements about the intensity, persistence, and limiting effects of his symptoms were
inconsistent with the objective evidence, the nature of his care, his response to treatment, and
evidence of his activities during the period under review (see Pl. Br. at 30 (citing Tr. 24)).1 Plaintiff
also acknowledges that the ALJ did not “necessarily have to believe all (or any) of his testimony
as to how his impairments generate symptoms which limit his ability to perform work-related
activities” (Pl. Br. at 30 (citing Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016)). As such,
Plaintiff does not assert that his testimony was ignored or not addressed; rather, that it was
“incorrectly interpreted” (Pl. Br. at 24).
According to Plaintiff, the ALJ incorrectly interpreted his testimony to mean that he had a
“greater ability to show up for work every workday, stay on task for close to eight hours a day,
1 “The claimant alleges an inability to work due to a combination of physical and mental impairments (Hrg.
Recording). As a result of his impairments, the claimant testified that he does not go out alone because of seizures.
He is always accompanied by family. He fears passing out on the job. In addition, he takes medications that make him
sleepy and cause him to go to the bathroom frequently. He sleeps 2 to 3 hours during the day. He also has back, neck,
and knee pain. For his mental health impairments, he gets treatment every 1 to 2 months and is prescribed medications”
(Tr. 24).
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work five days a week, and do all of this on a sustained basis, day after day, week after week” (Pl.
Br. at 24). Specifically, Plaintiff argues that although he “is able to engage in a few self-selected
activities of daily living[,]” his testimony makes it clear that he can only do such activities because
he can choose whether to do them or not, can do them at his own pace, take breaks or naps as
needed, or can stop performing the tasks altogether if needed (Pl. Br. at 31–32). Plaintiff asserts
that had the ALJ adequately interpreted his testimony, it would have resulted in a more restrictive
RFC 	determination 	considering 	his 	“problems 	staying 	awake, 	staying 	on 	task 	without
interruptions, and completing tasks on any basis other than according to his own self-directed
schedule and pace” (Pl. Br. at 19 (citing Tr. at 58–59)).
The court notes that under 20 C.F.R. § 404.1529, the ALJ must address the claimant’s
reported symptoms, but the court will not reweigh the evidence or substitute its judgment for that
of the ALJ; rather, it considers whether there was “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek, 139 S. Ct. at 1157 (quoting
Consolidated Edison, 305 U.S. at 229)). Plaintiff’s arguments boil down to a request that his
testimony be weighed differently, which is not within the court’s authority. What is within the
court’s authority, however, is to determine whether substantial evidence supports the ALJ’s
determination that Plaintiff’s testimony was inconsistent with the record. For the reasons stated
below, the court finds no error with the ALJ’s determination of inconsistency, as the ALJ offered
well-supported reasons for this conclusion.
a. 	Plaintiff’s Physical Impairments
With respect to Plaintiff’s physical impairments, the ALJ considered objective medical
evidence, particularly regarding Plaintiff’s seizures, spine impairments, and activity levels.
Regarding Plaintiff’s testimony about his inability to go out alone because of seizures, the ALJ
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gave a detailed account of Plaintiff’s history of infrequent seizures and “[a]s a precautionary
measure” limited Plaintiff to never working around unprotected heights or moving and/or
dangerous machinery; no driving of motorized vehicles as part of his job requirements; and no
bright lights, which would be lights in excess of retail and office type lighting, and no flashing
type lights (Tr. 24–25, 28). Plaintiff cites no medical evidence or other evidence (except his own
testimony) to contradict the ALJ’s conclusion that the above limitation sufficiently addresses
Plaintiff’s infrequent seizures. Moreover, Plaintiff’s testimony provides questionable details
regarding the frequency and severity of his seizures. During the hearing, Plaintiff “testified that he
had a seizure in July 2024 [Tr. 50–51], and one in January 2023 [Tr. 53]. He further testified that
he had one seizure in 2024, but then testified that he had ‘like two or three’ seizures while he was
sleeping in 2024 [Tr. 56]” (Def. Br. at 8).
Next, regarding Plaintiff’s testimony regarding his back, neck, and knee pain (Tr. 56)
which makes him unable to stand for too long or sit for too long (Tr. 66), the ALJ determined that
the evidence indicated that lumbar epidural, and cervical epidural steroid injections have resulted
in eighty percent (80%) pain relief and that Plaintiff has requested that injections be repeated every
three to four months for maintenance of pain (Tr. 26). Plaintiff himself indicated that he cannot
get surgery to fix these issues because of his seizures, but he does get injections for the pain and
did not report that the injections are not helping (Tr. 56). Eighty percent (80%) pain relief is
significant, and an ALJ is fully able to consider a claimant’s response to treatment when
determining the limiting effects of his/her symptoms. 20 C.F.R. § 404.1529(c)(3)(iv) (Factors
relevant to your symptoms, such as pain, which we will consider include . . . Treatment, other than
medication, you receive or have received for relief of your pain or other symptoms. . .). The court
also notes that Plaintiff testified that he was able to take a two-hour flight, then a ten-hour flight,
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and perhaps more flights when he went on his trip to Saudi Arabia (Tr. 53). Thus, the ALJ made
no error by finding Plaintiff’s testimony regarding his ability to stand and sit for long periods of
time was not consistent with the record.
b. 	Plaintiff’s Mental Impairments
The ALJ evaluated Plaintiff’s mental impairments and associated allegations, including
difficulties with concentration, memory, persistence, and pace. Regarding Plaintiff’s testimony
that he has problems “staying on task without interruptions, and completing tasks on any basis
other than according to his own self-directed schedule and pace” (Pl. Br. at 19), the ALJ
specifically stated as follows:
With regard to concentrating, persisting or maintaining pace, the claimant has a
moderate limitation. The claimant reported an inability to finish things he starts and
poor concentration. However, mental status examinations consistently note that the
claimant’s attention and concentration are good.
Tr. 22 (citing Ex. 7E at6; Ex. 22F at39; Ex. 22F at13, 17, 21, 24; Ex. 36F at18, 24, 30).2 But the
ALJ gave some credit to Plaintiff’s subjective claims and reasonably found that he had more
limitations than these records identified by finding a moderate limitation in this area (Tr. 24 (“Still,
in considering the claimant’s subjective complaints and giving him the benefit of the doubt, the
undersigned finds that he has a moderate limitation in this area.”)) (emphasis added).3
2 	The 	court 	notes 	that 	this 	determination 	is 	pulled 	from 	the 	ALJ’s 	symptom 	evaluation, 	but
“[s]ince the purpose of the [symptom] evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s [symptom]
and RFC determinations are inherently intertwined.” Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009).
Accordingly, the court may use the ALJ’s symptoms evaluation when determining the line of reasoning in the RFC
evaluation.
3 See also Tr. 23 (“The record does not establish that the claimant has only marginal adjustment, that is, a minimal
capacity to adapt to changes in the claimant’s environment or to demands that are not already part of the claimant’s
daily life. The record shows that the claimant was able to keep and attend his medical appointments, socialize with
others, and travel to California, Saudi Arabia, and Pakistan during the period under review (citing Hrg. Recording;
Ex. 17F; 36F)).
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Similarly, regarding Plaintiff’s problems with “remembering” (Pl. Br. at 13), the ALJ
found moderate limitation, by also giving some credit to Plaintiff’s subjective claims:
In understanding, remembering or applying information, the claimant has a
moderate limitation. The claimant reported needing reminders for personal care and
medications. However, he wrote in his Function Report that he retains the ability to
pay bills and handle a savings account. On mental status examinations, the
claimant’s memory was consistently noted to be intact. Nevertheless, considering
the claimant’s subjective complaints and giving him the benefit of the doubt, the
undersigned finds that he has a moderate limitation in this area.
Tr. 22 (citing (Ex. 7E, p. 4; 22F, pgs. 13, 17, 21, 24; 36F, pgs. 18, 24, 30)).
Therefore, the court finds no error with the ALJ’s decision to find Plaintiff’s testimony
regarding the intensity, persistence, and limiting effects of his mental impairments was not
consistent with the record.
Moreover, the court acknowledges that the ALJ did not explicitly address every symptom
identified by Plaintiff’s testimony. However, there is a “difference between what an ALJ must
consider as opposed to what he must explain in the decision.” Mounts v. Astrue, 479 F. App’x 860,
866 (10th Cir. 2012). As such, an ALJ is not required to go factor by factor through the evidence,
discussing how each factor relates to the evidence. Instead, the ALJ needs only to set forth the
specific evidence on which he relied. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); Poppa,
569 F.3d at 1171. The ALJ “need not spell out every step in the reasoning” so long as the analytical
path can be discerned. Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988).
Here, the ALJ provided sufficient reasons for his findings as to Plaintiff’s subjective
complaints. The ALJ’s decision provided enough reasoning to allow the court to determine if such
a finding was supported by the amount of evidence necessary to be affirmed under the substantial-
evidence standard of review. Thus, the ALJ provided sufficient detail in his assessment of
Plaintiff’s subjective complaints, and his rationale was supported by the medical evidence. As
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such, the court will not disturb the ALJ’s finding that Plaintiff’s testimony was inconsistent with
the record.
ii. 	The ALJ properly considered the Medical Evidence.
Plaintiff argues that the ALJ’s RFC analysis is not supported by the medical record,
specifically because “[v]ery little in the record in the instant case supports the ALJ’s RFC and its
unwritten/unspoken finding that Mr. Khan had the ability to show up to work every day during a
workweek, to stay on task for 85–90% of a workday, and to satisfy an employer’s expectations
regarding productivity, on a continuous, sustained basis” (Pl. Br. at 37). In support, Plaintiff cites
medical evidence in the record that he believes was not adequately considered.
Because Plaintiff applied for benefits after March 27, 2017, the ALJ applied a new set of
regulations for evaluating medical evidence, which require the adjudicator to consider the
persuasiveness of medical opinion evidence using the factors set forth in the regulations. See 20
C.F.R. § 404.1520c(a). While multiple factors are outlined, the ALJ is only required to make
findings regarding the supportability and consistency of opinions and prior administrative medical
findings with the rest of the record. See 20 C.F.R. § 404.1520c(b)(2) (supportability and
consistency are the most important factors), 404.1520c(a), (c)(1)-(2). For the reasons stated below,
the court finds no error in the ALJ’s evaluation of the medical opinions in assessing Plaintiff’s
RFC, and the ALJ adequately articulated his reasoning consistent with the new regulations. The
ALJ’s findings are therefore supported by substantial evidence.
a. 	Plaintiff’s Neurologist, Dr. Megan M. Donohue, M.D.
Plaintiff cites various medical records documenting his “memory impairment, continued
deficits in attention, reasoning, solving problems, and the pragmatics of day-to-day living”
following his stroke on August 4, 2021 (Pl. Br. at 35 (citing Tr. 25)). Plaintiff specifically
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highlights notes from Dr. Donohue, eight months after the stroke, indicating that Plaintiff
continued to struggle with recovery (Pl. Br. at 35 (citing Tr. 25)). Plaintiff argues that, according
to these records, the RFC did not consider whether Plaintiff could pay attention or work for 85%
to 90% of the workday without going off task (id.).
The ALJ considered two statements by Dr. Donohue indicating that Plaintiff was unable to
return to work (Tr. 30 (citing Ex. 5F at16; Ex. 9F at1)). However, the ALJ noted that he did not
have to provide any analysis about how these statements were considered, because “statements
that an individual is not able to work are on an issue reserved to the Commissioner of Social
Security and are inherently neither valuable nor persuasive” (Tr. 30 (citing 20 C.F.R. §
404.1520b(c)(3)). As such, the ALJ clarified that he only mentioned Dr. Donohue’s opinions for
completeness. The court finds no error with the ALJ’s consideration of Dr. Donohue’s opinions.
Moreover, as stated earlier, the ALJ did consider such limitations and specifically found
that “[t]he claimant reported an inability to finish things he starts and poor concentration. However,
mental status examinations consistently note that the claimant’s attention and concentration are
good” (Tr. 22 (citing Ex. 7E at6; Ex. 22F a39; Ex. 22F at13, 17, 21, 24; Ex. 36F, at18, 24, 30)).
Furthermore, regarding Plaintiff’s impairments in memory, understanding, and remembering or
applying information, the ALJ found that Plaintiff did report needing reminders for personal care
and medications, “[h]owever, he wrote in his Function Report that he retains the ability to pay bills
and handle a savings account” and “[o]n mental status examinations, the claimant’s memory was
consistently noted to be intact” (Tr. 22 (citing Ex.7E at4; Ex. 22F at13, 17, 21, 24; Ex. 36F at18,
24, 30)).
b. 	Dr. John Gill, Ph. D and Dr. Keith D. McGoldrick, Ph.D.
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Plaintiff contends that the opinions of Dr. John Gill, Ph.D., and Dr. Keith D. McGoldrick,
Ph.D., were not adequately considered by the ALJ (Pl. Br. at 35–6). The ALJ found that the
opinions of Dr. Gill were “somewhat persuasive” (Tr. 29). The opinions of Dr. McGoldrick were
only mentioned for completeness because “Dr. McGoldrick did not offer an opinion as to what the
claimant can do in spite of his impairments and, therefore, the undersigned is unable to evaluate
his conclusions in terms of persuasiveness” (Tr. 30). Plaintiff highlights Dr. Gill’s conclusion that
Plaintiff has “a mild restriction on his ability to understand and apply information, mild restriction
on his ability to manage interpersonal involvements among coworkers and the public, moderate
restriction on his ability to avoid distractions in work her performs, and moderate restriction on his
ability to adapt to change when needed” (Tr. 102). Plaintiff also highlights Dr. McGoldrick’s
opinion that, due to low cognitive functioning, Plaintiff has significant difficulty maintaining
attention, working at a rapid pace, and solving problems (Pl. Br. at 36). Plaintiff argues that the
ALJ’s RFC did not adequately consider Dr. Gill's or Dr. McGoldrick’s opinions because the RFC
did not include his limitations in concentrating, persisting, or maintaining pace in a job (see id.).
As Defendant points out, however, finding that a medical opinion is “somewhat” persuasive does
not require the ALJ to mirror the opinion (Def. Br. at 14 (citing Carver v. Colvin, 600 F. App’x
616, 619 (10th Cir. 2015)).
Here, Dr. Gill concluded that Plaintiff had mild and moderate restrictions; however,
Plaintiff fails to cite to Dr. Gill’s concerns that Plaintiff was “exaggerating” his deficits, which
made it difficult for him to clearly establish how Plaintiff’s restrictions would limit his work
potential (see Tr. 101–02). Dr. McGoldrick had similar concerns, observing that Plaintiff’s
“behaviors were significantly different during testing than those he displayed during the interview”
(Tr. 849), which made it difficult to ascertain Plaintiff’s prognosis given his questionable behaviors
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(Tr. 850). Despite concerns regarding Plaintiff’s credibility, the ALJ sufficiently accounted for
these findings when he limited Plaintiff to simple work in which he could have occasional
interaction with the public, occasional interaction with co-workers, and occasional interaction with
supervisors, and would be able to deal with only occasional changes in a routine work setting (Tr.
23). By including this limitation, the ALJ considered statements about Plaintiff’s ability to perform
the physical demands of work activities from Dr. Gill and Dr. McGoldrick, explained how
persuasive he found those statements, and addressed their supportability and consistency with
other evidence in making his factual findings about Plaintiff’s RFC. See 20 C.F.R. §§
404.1513(a)(2) & (5), 404.1520c(b), 404.1546(c). Accordingly, the ALJ properly evaluated
Plaintiff’s symptoms and the medical opinions in assessing Plaintiff’s RFC and adequately
articulated his reasoning consistent with the new regulations. The ALJ’s findings are therefore
supported by substantial evidence.
iii. 	The ALJ properly considered all “other” evidence.
Lastly, Plaintiff argues that the ALJ failed to consider “other” evidence when making his
RFC determination (Pl. Br. at 37–39). Plaintiff cites to the ALJ’s decision in which he stated that
if the claimant’s impairments could not be substantiated by the objective medical evidence, he had
to consider “other” evidence in the record to determine the claimant’s ability to do work-related
activities (see Pl. Br. at 37). Plaintiff appears to raise two pieces of “other” evidence which were
not adequately considered: (1) Plaintiff’s seizure while in Saudi Arabia and his seizure while in
California; and (2) the testimony of the Vocational Expert (VE) (id.).
Plaintiff testified that during the period of his limitations, he took a five-day vacation to
California, where he visited Sea World, and an eight-week vacation to Saudi Arabia (Tr. 51–54).
Plaintiff further testified that while at Sea World, he suffered a seizure while “he was alone” (Tr.
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51) and, while in Saudi Arabia, “passed out,” both instances resulting in hospitalizations (Tr. 51,
53–54). It appears that the ALJ weighed Plaintiff’s trips heavily against Plaintiff’s subjective
testimony regarding the intensity, persistence, and limiting effects of his symptoms, as the trips
were mentioned twice in the decision (Tr. 22, 24). The court will not reexamine this evidence but
finds no error with the ALJ’s determination that Plaintiff’s testimony was not consistent with “his
activities during the period under review” (Tr. 24).
Moving to the ALJ’s consideration of the VE’s testimony. During the hearing, the ALJ
asked the VE a hypothetical of a claimant with the following capabilities:
[L]ight exertional work, occasionally lift and carry 20 pounds, frequently ten
pounds, sit for approximately six hours in an eight-hour day, and stand and walk
approximately six hours in an eight-hour day . . .An individual is limited to simple
tasks, has occasional interactions with the public, occasional interactions with
coworkers, and occasional interactions with supervisors, defined as requiring
supervisory critical checking of the person’s work. I would limit them to dealing
with only occasional changes in a routine work setting.
Tr. 62–63. The VE testified that a claimant with those capabilities could not perform Plaintiff’s
past work but listed three jobs that would fit this particular claimant (Tr. 63–64). The ALJ and the
VE had the following discussion regarding the ability to stay on task and absenteeism:
ALJ: “In general, what percentage of a workday do employers customarily tolerate
their employees to be off task?”
VE: For unskilled jobs, if a person is off task for 15% or more, that precludes
competitive work all by itself.
ALJ: And with regard to unexcused or unscheduled absences and that would
include getting to work late, leaving work early, how many of those customarily
tolerated by employers on a monthly basis?
VE: If a person misses more than one or two days per month, month after month,
that all by itself precludes competitive work.
ALJ: And with regard to routine rest or break periods, how many of those are
customarily permitted by employers for their employees in a normal workday? And
give me an idea as to number as well as length of time of each.
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VE: Sure. Typically, there are three breaks, one, 10- to 15-minute break in the first
half of the shift, another 10- to 15-minute break in the second half of the shift, and
then a lunch break of 30 or 60 minutes depending on the polices of the employer.
ALJ: And, in your opinion, Mr. Granat, would exceeding these customary limits
on a regular basis eliminate all jobs in the competitive workplace?
VE: It would, your Honor.
Tr. 64–65. Following this discussion, Plaintiff’s Attorney asked the VE whether the three jobs he
identified earlier would require production quotas (Tr. 65–66). The VE stated that, normally, if a
person falls 15% or 20% short of the quota, they will get in trouble (id.). Plaintiff’s Attorney then
asked whether an employee who could not meet such quotas would be precluded from
employment, to which the VE responded that he believed so (id.).
The ALJ adopted an RFC for light work and relied on the vocational expert’s testimony
responsive to the first hypothetical (Tr. 23).4 Plaintiff argues that “[d]espite the framing of the
second and third hypothetical questions to the [VE], the restrictions of which related to Mr. Khan’s
ability to work productively . . . the ALJ did not include any of such limitations in the RFC he
placed in his Decision” (Tr. Br. at 38) (emphasis added). Plaintiff’s argument is fundamentally
flawed because he incorrectly concludes that the VE’s testimony established that Plaintiff would
have issues with excessive absenteeism and reduced ability to remain on task. If Plaintiff believed
these limitations should have been included in the RFC, simply pointing to the VE’s responses to
hypotheticals is not sufficient.
The VE’s testimony only establishes that an individual with excessive absenteeism and
reduced ability to remain on task would be precluded from employment, but it does not establish
4 While Plaintiff’s argument pertains to the ALJ’s RFC analysis, the court also notes that the ALJ’s hypothetical to
the VE included all the limitations he determined that Plaintiff experienced, and as such, the VE’s testimony was
substantial evidence to support the ALJ’s decision. See Qualls, 206 F.3d at 1373.
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that Plaintiff suffered from these limitations. For the court to find error in the ALJ’s RFC
determination, Plaintiff has the burden of pointing to evidence showing that additional limitations
should have been included. See McAnally v. Astrue, 241 Fed. App’ x 515, 518 (10th Cir. 2007)
(when a plaintiff does not identify additional limitations that should have been included or discuss
any evidence that would support the inclusion of additional limitations, “the RFC stands”). The
only evidence Plaintiff points to is the testimony of the VE regarding a hypothetical individual,
which is insufficient to support the inclusion of additional limitations. The ALJ does not have to
address unsupported limitations. Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995).
Furthermore, it is the ALJ, not a vocational expert, who is responsible for determining a claimant’s
RFC. Therefore, the court finds no error with the ALJ’s determination of an RFC for light work.
In summary, Plaintiff’s assertion that the ALJ’s RFC determination lacked sufficient
evidence is unfounded and essentially asks this court to reexamine the evidence, which is not
within the court’s authority. See Biestek, 139 S. Ct. at 1157.
III. 	CONCLUSION
When viewed in its entirety, the record contains substantial evidence to support the ALJ’s
finding that Plaintiff was not disabled. Thus, the court concludes that the ALJ’s decision in this
matter is supported by substantial evidence in the record and that the correct legal standards were
applied. Because the ALJ’s decision is supported by substantial evidence and legally sound, it is
RECOMMENDED that the court DENY Plaintiff’s Motion for Review of Agency Action (ECF
18), that the Commissioner’s decision be AFFIRMED, and that judgment be entered in accordance
with Fed. R. Civ. P. 58, consistent with the U.S. Supreme Court’s decision in Shalala v. Schaefer,
509 U.S. 292, 296-304 (1993).
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NOTICE
Copies of this Report and Recommendation are being sent to Plaintiff, who is hereby
notified of his right to object. Plaintiff must file any objection to this Report and Recommendation
within fourteen (14) days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). A failure to object may constitute waiver of objections upon subsequent review.
DATED this 19 February 2026.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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