United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) and Supplemental Security Income
(SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding no error in the Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING that decision.
applied for DIB and SSI benefits, ultimately alleging
disability beginning March 16, 2011. (R. 13, 50). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
claims that the ALJ erred in the credibility determination.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Act
provides that “[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 relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
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.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; 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
he has a severe impairment(s), and whether the severity of
his 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.
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 his 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).
court finds no error in the ALJ's credibility
argues that “[t]he ALJ was wrong” in finding that
Plaintiff's allegations of limitations resulting from his
impairments were “only partially credible.” (Pl.
Br. 8).This is so, in Plaintiff's opinion
because unremarkable objective testing does not undermine his
allegations, because a proper consideration of “the
nature and frequency of [his] treatment supports his
credibility, ” id. at 9, because his daily
activities as reported both by him and by a friend support
his credibility, id. at 10, because the ALJ's
determination that Plaintiff's pain was controlled by
diet, medication, and abstinence from alcohol was based on a
misunderstanding of the record, and because “the
apparent inconsistencies the ALJ found do not detract from
[Plaintiff's] credibility.” Id. at 11-12.
The Commissioner argues that the ALJ's credibility
determination was reasonable and supported by the record
evidence, and that Plaintiff merely asks the court to reweigh
the evidence. (Comm'r Br. 3). She argues that Plaintiff
admits the objective evidence does not support his complaints
of pain, and “has not identified any objective evidence
demonstrating that he experienced functional
limitations” from his impairments or complaints.
Id. at 4-5. She points out that an ALJ must consider
the objective evidence, but acknowledges that he may not rely
solely on objective evidence to discount the credibility of
Plaintiff's allegations. Id. at 5. She argues
that the ALJ considered and discussed Plaintiff's
treatment history, reported activities of daily living,
inconsistencies in Plaintiff's reports, and his
treatment. Id. at 6-7.
Standard for a Credibility Determination
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”).
must demonstrate the error in the ALJ's rationale or
finding; the mere fact that there is evidence which might
support a contrary finding will not establish error in the
ALJ's determination. “The possibility of drawing
two inconsistent conclusions from the evidence does not
prevent an administrative agency's findings from being
supported by substantial evidence. [The court] may not
displace the agency's choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citations, quotations, and bracket
omitted); see also, Consolo v. Fed. Maritime
Comm'n, 383 U.S. 607, 620 (1966). But,
“[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988). ...