United States District Court, D. Utah, Central Division
TAMMY E. H., Plaintiff,
NANCY A. BERRYHILL, Defendant.
MEMORANDUM DECISION AND ORDER
C. Wells U.S. Magistrate Judge.
case is before the undersigned following the parties'
consent under Federal Rule of Civil Procedure
An oral argument was held in this matter on August 23, 2018.
David J. Holdsworth represented Plaintiff and Melissa C.
Schuenemann represented Defendant. After hearing oral
argument and having considered the parties' memoranda,
the administrative record and relevant case law, the court
finds the Administrative Law Judge's (ALJ) Residual
Functional Capacity (RFC) determination was supported by
substantial evidence and the correct legal standards were
applied. The court adopts the reasoning set forth by
Defendant in its answer brief.
Tammy E.H.,  sustained injuries in an automobile
accident in October 2012. She alleged eligibility for disability
insurance benefits due to degenerative disc disease of the
cervical and lumbar spine, migraine headaches, fibromyalgia
and chronic advanced chondromalcia of the
patella. A hearing was held on December 9, 2015,
before an ALJ. The ALJ found that although Plaintiff
could not perform her past relevant work, she could perform
other jobs available in significant numbers in the national
economy and was thus not disabled.
brief, Plaintiff argued the ALJ erred by failing to correctly
(1) develop the record, consider and evaluate the medical
evidence as to her mental impairments in framing her RFC; (2)
consider and evaluate the combined and cumulative effect of
her severe and non-severe physical impairments in framing the
RFC; and (3) adopt an additional limitation contained in the
third hypothetical provided to the vocational expert at the
hearing-specifically that Plaintiff would be off task 10 to
15 percent of the time while on the job due to the effects of
hearing, Plaintiff's counsel acknowledged the record is
sparse--there is no objective medical evidence regarding
Plaintiff's physical or mental impairments.
Plaintiff's counsel also conceded that in these types of
cases, the ALJ, as the fact finder gets to weigh the
evidence. At the hearing, Plaintiff's counsel focused on
the third point, the sustainability argument, although he
conceded the ALJ is not required to use a hypothetical in the
RFC analysis which includes limitations the claimant alleges,
but which the ALJ does not accept. This is correct. The ALJ
is not required to include limitations in the RFC that are
not supported in the record. In fact, there is only one record
indicating Plaintiff received counseling on one
occasion. It is the Plaintiff's burden to
provide proof of her disability. The ALJ is only required to
develop the record when there is insufficient evidence to
make a disability determination.
court appreciates Plaintiffs counsel's candor in this
matter. The court agrees that the evidence in the record was
sparse. Reviewing the record, it does not appear the
Plaintiff has met her burden. The ALJ's decision is
supported by substantial evidence and the correct legal
standards were applied. Accordingly, the decision of the
Commissioner is affirmed and the Clerk of the Court is
directed to close this case.
 ECF No. 12.
 Based on privacy concerns regarding
personal information, the court does not use Plaintiff's
last name. Privacy concerns are a part of many of the Federal
Rules. See Fed. R. App. P. 25(a)(5); Fed.R.Civ.P. 5.2; Fed.
R. Crim. P. 49.1; Fed.R.Bankr.P. 9037.
 Tr. 47.
 Tr. 26, 45, and 65.
 Tr. 24.
 Tr. 32-33.