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Beard v. Colvin

United States District Court, Tenth Circuit

December 16, 2013

NIKKI LEANNE BEARD, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Commissioner's final decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

I. Background

Plaintiff applied for SSD, alleging disability beginning September 16, 2006. (R. 9, 149-55). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She now alleges that the Administrative Law Judge (ALJ) erred in weighing the medical opinions both of her treating physician, Dr. Brown, and of Dr. Pro, a psychiatrist who performed an independent psychiatric evaluation as part of Plaintiff's worker's compensation claim; and also erred in evaluating the credibility of Plaintiff's allegations of symptoms.

The court's review is guided by the Act. Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart , 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales , 402 U.S. 389, 401 (1971); Wall , 561 F.3d at 1052; Gossett v. Bowen , 862 F.2d 802, 804 (10th Cir. 1988).

The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue , 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart , 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett , 862 F.2d at 804-05; Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 1989).

The Commissioner uses a familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue , 602 F.3d 1136, 1139 (10th Cir. 2010) (citing 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." Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams , 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process- determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart , 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir. 2001); Williams , 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id .; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).

The court finds no error in the ALJ's decision. It begins its analysis with review of the ALJ's credibility determination.

II. Credibility Determination

Plaintiff claims the ALJ's credibility determination is erroneous because it was based only upon the objective medical evidence of record "except for a later mention of [Plaintiff's] daily activities in one paragraph." (Pl. Br. 13). Plaintiff does not argue that the ALJ should have ignored the medical evidence, but points to the seven regulatory factors for evaluating credibility and argues that the ALJ "failed to consider all of the credibility factors as required by the regulations." Id . at 13-14. The Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff's allegations. She argues that the ALJ considered all of the regulatory factors for evaluating credibility and that a factor-by-factor analysis and discussion of each factor is not required. She points to record evidence tending to support the ALJ's credibility determination, and argues that the court should defer to the ALJ's credibility findings.

As the parties agree, the ALJ found that Plaintiff's allegations of limitations resulting from her impairments "are not credible." (R. 19). Moreover, he specifically listed and summarized the seven regulatory factors for evaluating credibility, and cited the regulation and the Social Security Ruling which controlled his credibility determination. Id . at 19 (citing 20 C.F.R. § 404.1529; Soc. Sec. Ruling (SSR) 96-7p). Those are the very factors, regulation, and ruling which were cited in Plaintiff's Brief. (Pl. Br. 13-14). Over the next three paragraphs, the ALJ stated five reasons he had determined Plaintiff's allegations are not credible: her activities of daily living are not consistent with her alleged level of pain, there is little evidence she has requested increased pain medication, there is little evidence that she has reported side effects of medication, her allegations are exaggerated, and her allegations are inconsistent with the other record evidence. (R. 19-20).

The court's review of an ALJ's credibility determination is deferential. Credibility determinations are generally treated as binding on review. Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris , 698 F.2d 407, 413 (10th Cir. 1983). "Credibility determinations are peculiarly the province of the finder of fact" and will not be overturned when supported by substantial evidence. Wilson , 602 F.3d at 1144; accord Hackett , 395 F.3d at 1173.

Therefore, in reviewing the ALJ's credibility determinations, the court will usually defer to the ALJ on matters involving witness credibility. Glass v. Shalala , 43 F.3d 1392, 1395 (10th Cir. 1994); but see Thompson v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993) ("deference is not an absolute rule"). "However, [f]indings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.'" Wilson ...


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