UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KENNETH G. VIGIL, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant - Appellee. 

No. 14-1478 

(D.C. No. 1:13-CV-01896-CBS) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges. 

_________________________________ 

Kenneth G. Vigil appeals from the denial of his application for disability 

insurance and supplemental security income benefits. Exercising jurisdiction under 

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. 

I. 

Vigil filed for benefits alleging disability due to a bad left knee and ankle, 

anxiety, depression, and pain in his left heel and back. He requested and received a 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

September 28, 2015

Elisabeth A. Shumaker 

Clerk of Court

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hearing before an administrative law judge (“ALJ”) at which he was represented by 

counsel. Vigil and a vocational expert (“VE”) testified. 

The ALJ found that Vigil has severe impairments of degenerative changes of 

the lumbar spine, status post-left knee anterior cruciate ligament (“ACL”) repair, 

obesity, major depressive disorder, and generalized anxiety disorder.1

 He then 

determined that Vigil could not perform his past relevant work as a fiberglass maker, 

spot welder, auto detailer, hog farmer, concrete laborer, or brick maker. The ALJ 

found that Vigil has the residual functional capacity (“RFC”) to perform light work 

as defined in 20 C.F.R. § 404.1567(b), except that he can only occasionally bend, 

squat, and kneel; is unable to climb ropes, ladders, or scaffolds; can occasionally 

operate foot or leg controls; is unable to perform complex tasks, such that he is 

limited to jobs with a specific vocational preparation (“SVP”) of one or two;2

 and he 

cannot deal with the general public. After considering the VE’s testimony, the ALJ 

determined Vigil could perform other work that existed in substantial numbers in the 

national economy. Accordingly, the ALJ denied benefits at step five of the five-step 

 1

 We will not recite all of the medical evidence here. The parties are familiar 

with the evidence and the relevant medical evidence is described accurately and 

thoroughly in the magistrate judge’s 24-page opinion and order. See Aplt. App. 

at 90-113. 

2

 SVP refers to the “time required by a typical worker to learn the techniques, 

acquire the information, and develop the facility needed for average performance in a 

specific job-worker situation.” Dictionary of Occupational Titles, App. C, Sec. II 

(4th ed., revised 1991), 1991 WL 688702 (G.P.O.). A job at SVP one requires “a 

short demonstration only” and at SVP two requires “[a]nything beyond a short 

demonstration up to and including 1 month.” Id.; see also SSR 00-4p, 2000 WL 

1898704, at *3 (“unskilled work corresponds to an SVP of 1-2”). 

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sequence for determining disability. See Wall v. Astrue, 561 F.3d 1048, 1052 

(10th Cir. 2009) (summarizing steps). The Appeals Council denied review, and the 

district court affirmed. 

II. 

“We review the Commissioner’s decision to determine whether the factual 

findings are supported by substantial evidence and whether the correct legal 

standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014) 

(internal quotation marks omitted). “In reviewing the ALJ’s decision, we neither 

reweigh the evidence nor substitute our judgment for that of the agency.” Newbold v. 

Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted). 

Vigil asserts two arguments on appeal: (1) the ALJ did not have a valid reason for 

rejecting the standing and walking restrictions described by his consultative 

physician, Dr. Summerlin, and (2) the ALJ improperly accounted for his memory and 

concentration deficits by limiting the skill level of work. 

A. 

Vigil first argues that the ALJ erred in evaluating the medical source opinion 

evidence from consultative examiner Dr. Summerlin when he determined Vigil’s 

RFC. An ALJ must “give consideration to all the medical opinions in the record 

[and] discuss the weight he assigns to such opinions.” Keyes-Zachary v. Astrue, 

695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). When assessing a medical 

opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give 

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good reasons for the weight he assigns to the opinion. See Watkins v. Barnhart, 

350 F.3d 1297, 1301 (10th Cir. 2003); 20 C.F.R. § 404.1527(c)(2). 

Vigil hurt his knee loading hay in 2006, but an x-ray showed intact osseous 

alignment, and there was no evidence of a fracture, cortical destruction, or joint 

effusion. Admin. R. at 213. A 2006 examination showed full range of motion in the 

left knee with no laxity or edema, and the only restriction on his ability to stand and 

walk in an eight-hour day was a requirement to take a five minute rest each hour. 

Vigil complained of back pain in 2006, but nerve studies of his low back and left leg 

were normal, and showed there was no evidence of lumber radiculopathy. Id. at 227. 

Vigil had surgery in May 2007 for an ACL tear in his left knee. All of the 2007 

post-surgical examinations indicate that Vigil had some reduced range of motion in 

his knee but was improving at each visit. There are no medical records for Vigil after 

2007, until he was seen by Dr. Summerlin in 2010.3

 

Vigil saw Dr. Summerlin only once, in August 2010, shortly after he filed for 

benefits. Dr. Summerlin opined that “[t]he number of hours [Vigil] could be 

expected to stand and/or walk in an eight hour workday would be up to four hours, 

due to left knee osteoarthritis and lumbar radiculopathy.” Id. at 326. 

The ALJ gave Dr. Summerlin’s opinion moderate weight. He specifically 

determined that Dr. Summerlin’s opinion that Vigil could only stand and walk for 

four hours was not consistent with Dr. Summerlin’s exam findings: 

 3

 The ALJ noted that Vigil was incarcerated between 2007 and 2010, during 

which time Vigil did not receive any treatment. 

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Consultative examiner Adam Summerlin, M.D. opined that the claimant 

was able to stand and/or walk for 4 out of 8 hours; lift 20 pounds 

occasionally and 20 pounds frequently; and was limited in the ability to 

stoop, crouch, kneel, and crawl. The undersigned gives this opinion 

moderate weight. The opinion was rendered after a thorough 

examination of the claimant and is somewhat consistent with the exam 

findings. However, the opinion is not clearly explained. While the 

limitations on carrying, lifting, and postural activities is basically 

consistent with the exam findings and the record as a whole, the 

limitations on standing and walking are not. Dr. Summerlin found 

normal range of motion of the knee, normal gait, and normal strength 

and tone. Dr. Summerlin does not reconcile the apparent discrepancy 

between these essentially normal findings and his opinion, and this 

detracts from the persuasiveness of his opinion. 

Admin. R. at 18. 

The ALJ’s finding that Dr. Summerlin’s restrictions on standing and walking 

were inconsistent with his own examination findings is a good reason for giving that 

medical opinion only moderate weight. See 20 C.F.R. § 404.1527(c)(3) (stating that 

“[t]he more a medical source presents relevant evidence to support an opinion, 

particularly medical signs and laboratory findings, the more weight [the ALJ] will 

give that opinion [and t]he better an explanation a source provides for an opinion, the 

more weight [the ALJ] will give that opinion”). Further, the ALJ’s assessment of 

Dr. Summerlin’s opinion and examination results is supported by the record. 

Dr. Summerlin described Vigil as having a limp on the left leg but no need for any 

assistive device. His x-ray examination of Vigil’s left knee showed only mild 

osteoarthritis, and his range of motion testing showed that Vigil had full, normal, 

active range of motion in his left knee and his spine. Admin. R. at 325. 

Dr. Summerlin also reported that Vigil had negative straight leg raises, intact deep 

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tendon reflexes, and full muscle strength throughout. Id. at 326. These normal 

examination results do not indicate any inability to stand or walk for more than 

four hours in an eight-hour workday. As the ALJ noted, Dr. Summerlin did not give 

any explanation for the inconsistency between his stand/walk restriction and the 

actual examination results of his testing. The ALJ also recounted all of the other 

medical evidence in the record that indicated Vigil had a normal range of motion in 

his knee and spine, a normal walking gait, normal strength, and a fairly intact ability 

to walk and stand. The record supports the ALJ’s evaluation of this evidence. The 

ALJ did not substitute his judgment for that of Dr. Summerlin or ignore 

Dr. Summerlin’s findings. Rather, the ALJ considered all of Dr. Summerlin’s 

medical evidence, as well as the record as a whole, and gave good reasons for the 

weight he afforded Dr. Summerlin’s opinions. We see no error. 

B. 

Vigil next contends the ALJ failed to adequately account for his memory and 

concentration deficits in determining his RFC. The ALJ found at step three that Vigil 

has moderate difficulties in concentration, persistence, and pace in social functioning. 

The ALJ took these difficulties into account in formulating Vigil’s RFC by limiting 

the skill level of his work to work with an SVP one or two. Vigil contends the ALJ 

should have included in his RFC his specific concentration, persistence and pace 

limitations, rather than account for those limitations by restricting his RFC to 

unskilled (SVP one or two) work. Again, we find no error. 

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At steps two and three of the sequential analysis, the ALJ determines whether 

the claimant has a severe impairment (step 2) and whether the impairment meets or 

equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (step 3). Here, the 

ALJ found at step three of the sequential process of evaluation that Vigil had only a 

moderate—not marked—limitation of concentration, persistence and pace. See id., 

Listing 12.01, paragraph B (the “paragraph B criteria”). The social security ruling on 

assessing a claimant’s RFC cautions that “[t]he adjudicator must remember that the 

limitations identified in the ‘paragraph B’ . . . criteria 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.” SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). The ALJ’s 

finding of a moderate limitation in concentration, persistence, or pace at step three 

does not necessarily translate to a work-related functional limitation for the purposes 

of the RFC assessment. 

At the “more detailed” step four assessment of Vigil’s RFC, id., the ALJ found 

some evidence indicating that Vigil had some problems with concentration, 

persistence, and pace “such that [he] could not be expected to perform complex 

tasks.” Admin. R. at 17 (citing findings of impaired delayed recall, inability to spell 

in reverse, or recall the President’s name). But, the ALJ further found that “the 

findings of a normal ability to recall items on immediate recall, and an ability to spell 

words forward, as well as finding of normal thought processes, indicate[d] that Vigil 

retain[ed] enough memory and concentration to perform at least simple tasks.” Id. 

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Thus, the ALJ accounted for Vigil’s moderate concentration, persistence, and 

pace problems in his RFC assessment by limiting him to unskilled work. There may 

be cases in which an ALJ’s limitation to “unskilled” work does not adequately 

address a claimant’s mental limitations. See Chapo v. Astrue, 682 F.3d 1285, 1290 

n.3 (10th Cir. 2012) (recognizing that restrictions to unskilled jobs do not in all 

instances account for the effects of mental impairments). But in this case, we 

conclude that limiting the plaintiff to an SVP of only one or two, adequately took 

into account his moderate limitations in concentration, persistence, and pace. See

Social Security Administration Program Operations Manual System § DI 25020.010, 

§ B(3) (available at https://secure.ssa.gov/poms.nsf/lnx/0425020010 (last visited 

September 18, 2015) (noting that the capacity to perform unskilled work includes 

ability to maintain attention for extended periods of two-hour segments but that 

concentration is “not critical”). Unskilled work generally requires only the 

following: (1) “[u]nderstanding, remembering, and carrying out simple instructions”; 

(2) “[m]aking judgments that are commensurate with the functions of unskilled 

work—i.e., simple work-related decisions”; (3) “[r]esponding appropriately to 

supervision, co-workers and usual work situations”; and (4) “[d]ealing with changes 

in a routine work setting.” SSR 96-9p, 1996 WL 374185, at *9 (July 2, 1996). The 

evidence in the record regarding Vigil’s mental status supports the ALJ’s RFC 

determination that limiting Vigil to perform unskilled work would adequately 

account for his moderate limitations in concentration, persistence, and pace. 

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The judgment of the district court is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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