Carter v. Colvin

Filing 24

ORDER Affirming Commissioner. By Judge Robert E. Blackburn on 3/20/2014. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00504-REB
PAULINE CARTER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed February 26, 2013,
seeking review of the Commissioner’s decision denying plaintiff’s claim for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I
have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
The matter has been fully briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of a right hip fracture,
degenerative joint disease of the knees, and depression. Plaintiff filed an application for
disability insurance benefits in 2002 and was awarded a closed period of benefits for the
period of April 28, 2001, through June 5, 2002. However, plaintiff continued to receive
benefit payments until June 2007, when she was notified that benefits would no longer
1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

be paid. Plaintiff requested reconsideration of that determination and the case was
processed as a request for hearing on an initial application. Following protracted
proceedings at the administrative level,2 a hearing was held on November 27, 2012. At
the time of this hearing, plaintiff was 56 years old. She has high school education and
past relevant work experience as an order clerk and customer service representative.
She did not engage in substantial gainful activity between April 28, 2001, her alleged
date of onset, and December 31, 2007, her date last insured. See 20 C.F.R. §
404.131(a).
The ALJ found that plaintiff was not disabled after June 5, 2002, because she
experienced medical improvement in her impairment related to her ability to work, and
therefore that she was not entitled to disability insurance benefits past that date.
Although the medical evidence established that plaintiff suffered from severe
impairments after June 5, 2002, the judge concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ found that plaintiff had the residual functional capacity to perform
unskilled sedentary work with postural limitations. Although these findings precluded
plaintiff’s past relevant work, the ALJ concluded that there were jobs existing in
significant numbers in the national economy that she could perform. The ALJ therefore

2

Plaintiff’s first hearing, held in September 2007, resulted in a determination that she had not
been disabled at any point since April 28, 2001. (Tr. 10-22.) Since this conclusion conflicted with the
Commissioner’s initial determination that plaintiff was entitled to a closed period of benefits, the case was
remanded for reconsideration. (Tr. 296-308.) A second hearing was held in December 2010, following
which the ALJ concluded that plaintiff met the requirements of listing 1.06 from April 28, 2001, through
June 5, 2002, but that she was not disabled thereafter. (Tr. 572-585.) Because the ALJ failed to apply the
standards applicable to cases involving medical improvement, however, the Appeals Council remanded
for a third hearing. It is this most recent hearing that forms the basis of the current appeal.

2

found plaintiff not disabled at step five of the sequential evaluation. Plaintiff appealed
this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this
action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
A claimant who has previously been found disabled is subject to periodic review
to determine her continuing entitlement to benefits. See 20 C.F.R. § 404.1594(a). The
standards for deciding continuing eligibility apply both when benefits are sought to be
terminated and when the Commissioner awards a closed period of benefits. Shepherd
v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999). Benefits will be discontinued when there
has been medical improvement in the claimant’s impairments that is related to the ability

3

to do work. 20 C.F.R. § 404.1594(a). “Medical improvement” is any decrease in the
medical severity of the impairments based on changes in the symptoms, signs, and/or
laboratory findings associated therewith. Id., § 404.1594(b)(1). Medical improvement is
related to the ability to do work if these changes correspond to an increase in the
claimant’s functional capacity to perform basic work activities. Id., §§ 404.1594(b)(3) &
(b)(4).
The Commissioner has established a seven-step sequential evaluation process
for determining whether a claimant who has previously been found disabled has
experienced medical improvement related to the ability to do work:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimant’s
impairment meets or equals in severity certain impairments
described in Appendix 1 of the regulations.

3.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must then determine whether there has
been any medical improvement in that condition.

4.

If there has been medical improvement, the ALJ must
consider whether such improvement is related to the ability
to work.

5.

If the ALJ finds that the claimant has experienced medical
improvement related to the ability to work, she must then
determine whether all current impairments are severe.

6.

If the claimant’s remaining impairments are severe, the ALJ
must determine whether the claimant can perform her past
work despite any limitations.

7.

If the claimant does not have the residual functional capacity
to perform his past work, the ALJ must decide whether the
4

claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 404.1594(f)(1)-(8). See also Hayden v. Barnhart, 374 F.3d 986, 988 (10th
Cir. 2004). The Commissioner bears the burden of demonstrating that the claimant has
experienced medical improvement such that she now can engage in substantial gainful
activity. 20 C.F.R. § 404.1594(b)(5); Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir.
1994); Underwood v. Shalala, 985 F.Supp. 970, 977 (D. Colo. 1997).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.

5

III. LEGAL ANALYSIS
Plaintiff alleges that the ALJ violated the termination rules, erred in assessing her
residual functional capacity, weighed improperly the medical source opinions of record,
discredited wrongfully her subjective reports of pain and functional limitation, and failed
to sustain her burden of proof at step 7 of the sequential evaluation. Finding no such
reversible error in the ALJ’s decision, I affirm.
Plaintiff’s argument that the Commissioner violated the termination rules is
somewhat difficult to parse. Plaintiff suggests that the ALJ’s reliance on the
Commissioner’s August 27, 2002, disability determination as the “comparison point
decision” (“CPD”)3 in this case was problematic because that decision does not indicate
that plaintiff was entitled to a closed period of benefits, but rather infers that she would
continue to receive benefits, subject to periodic review. (Tr. 73-77, 264.) In her reply
brief, she clarifies that “[t]he problem with the decision’s analysis is that medical
improvement was not compared to the claimant’s condition on the CPD [in August,
2002], but upon the June 5, 2002 date when [plaintiff] was determined to no longer meet

3

In determining whether medical improvement has occurred, the Commissioner
will compare the current medical severity of that impairment(s) which was
present at the time of the most recent favorable medical decision that you
were disabled or continued to be disabled to the medical severity of that
impairment(s) at that time. . . . The most recent favorable medical
decision is the latest decision involving a consideration of the medical
evidence and the issue of whether you were disabled or continued to be
disabled which became final.

20 C.F.R. § 404.1594(b)(7). The most recent favorable medical decision is the CPD in most cases. See
Social Security Administration, Program Operations Manual System [hereinafter “POMS”] DI
28020.015(D)(2) (available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0428010105) (last accessed
March 20, 2014). Although cases involving a closed period of benefits the onset date, rather than the
most recent favorable medical decision, is to be used as the CPD, see POMS DI 28010.105(D)(3), plaintiff
fails to address this issue, much less show prejudice resulting from the CPD chosen.

6

a listing.” (Plf. Reply Br. at 3.)
However, as with the majority of the arguments presented in this appeal, plaintiff
fails to demonstrate how this alleged error in choosing the CPD prejudiced her
substantial rights. See Williams v. Chater, 1995 WL 490280 at *2 (10th Cir. Aug.16,
1995) (“Procedural imperfection that does not affect a party's substantive rights is not a
basis for reversal.”); Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988) (mere fact of
error does not warrant remand if the ALJ’s determination is otherwise supported by
substantial evidence).4 The ending date of plaintiff’s disability and the CPD were less
than 3 months apart. Plaintiff points to no evidence suggesting that any critical change
– or indeed, anything at all relevant to her medical condition – happened during this
brief period.
Instead, plaintiff’s chief complaint appears to be that the Commissioner’s
termination decision was unfair because she seemed to indicate in August 2002 that
plaintiff was entitled to continuing benefits, and, indeed, continued to pay plaintiff
benefits for years past the date her disability purportedly ended. Although such
considerations might be relevant if the Commissioner were seeking reimbursement of
the overpayment, see 20 C.F.R. § 404.506(a), it is not for purposes of this appeal.
Plaintiff presents nothing establishing that the termination procedure was not followed

4

Likewise, plaintiff raises the prospect that the termination proceedings violated her right to due
process, but fails to actually develop that line of argument. I am neither required nor inclined to consider
such inadequately developed issues. See Klein v. Colvin 2014 WL 984482 at *2 n.2 (D. Colo. March 13,
2014) (citing Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir .1998)). Moreover, plaintiff has
been afforded both adequate notice of both administrative hearings (Tr. 27-31, 272-281) and all appellate
remedies in connection with the termination decision. Due process requires no more. See LaChance v.
Erickson, 522 U.S. 262, 266, 118 S.Ct. 753, 756, 139 L.Ed.2d 695 (1998); Mathews v. Eldridge, 424
U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

7

once the Commissioner realized that benefits had been continued beyond the date on
which plaintiff’s impairment had been found to be no longer meet the Listings.5 This
argument therefore fails.
Plaintiff next argues that the ALJ’s determination of her residual functional
capacity after June 5, 2002, is flawed. This argument takes several forms. First,
plaintiff points to evidence in the record showing evidence of possible bursitis or,
alternatively, a non-union of the hip (Tr. 179), as well as knee instability and a July 2003
knee surgery (Tr. 658). Yet the ALJ actually addressed this evidence, specifically
discussing the fact that plaintiff required a second surgery in January 2002 to fix a nonunion of the previous hip fracture.6 She noted, however, that x-rays of June 5, 2002,
showed that the fracture had healed. (Tr. 268, 182.) Similarly, the ALJ acknowledged
that plaintiff underwent ACL repair in 2003 and throughly discussed the evidence of
record regarding her complaints of knee pain. (Tr. 268.)7 I perceive no error in the

5

Contrary to plaintiff’s suggestion, the opinion of the state agency physician, Dr. Alan Ketelhorn,
does not support a finding of continued disability after June 5, 2002. Dr. Ketelhorn plainly stated that
plaintiff met the requirements of section 1.06A of the Listings through June 5, 2002, but that “[a]fter this
period, a seated-[light] RFC is proposed.” The additional statement that plaintiff’s “statements are
credible” must be read in the context of these actual opinions, which clearly do not suggest that plaintiff’s
disability continued. (Tr. 191.)
6

Although plaintiff is correct that the ALJ did not discuss bursitis, it is clear that it was ultimately
determined that it was the non-union of the fracture, not bursitis, that was responsible for plaintiff’s
continuing complaints of pain. (See Tr. 183.)
7

Plaintiff suggests that her knee complaints were related to the original motor vehicle accident
that gave rise to her period of disability. (See Tr. 667.) It is not clear to the court what such recognition
adds to the force of plaintiff’s arguments. The relevant question does not concern the genesis of plaintiff’s
various impairments, but whether those impairments were disabling after June 5, 2002. Moreover, it is not
clearly supported by the evidence. (See Tr. 511 (1987 statement from Dr. Phillip Graehl that plaintiff
suffered a left knee ACL rupture and later meniscus tear and “wished to defer any [ACL] reconstruction” at
that time).)

8

ALJ’s consideration of these issues.8
Plaintiff next argues that the ALJ failed to consider properly whether she met the
requirements of section 1.02 of the Listings. The social security regulations include a
listing of physical and mental impairments that are presumptively disabling (the
“Listings”). See 20 C.F.R., Pt. 404, Subpt. P, app. 1. Section 1.02 of the Listings
addresses “major dysfunction of a joint(s) (due to any cause).” Such an impairment is
presumptively disabling if there is evidence, inter alia, of “[i]nvolvement of one major
peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate
effectively, as defined in 1.00B2b.” 20 C.F.R., Pt. 404, Subpt. P, app. 1, § 1.02A.9
Under the Commissioner’s definition, “[i]nability to ambulate effectively . . . is defined
generally as having insufficient lower extremity functioning . . . to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the functioning
of both upper extremities.” Id. § 1.00B(2)(b)(1). Plaintiff presents no evidence
suggesting that she requires this level of assistance in walking.10 Accordingly, there
8

Instead, it appears to this court that plaintiff’s chief contention in this regard is that the ALJ
discredited her subjective reports of pain. The issues raised by and inherent to such an argument are
discussed more fully below.
9

In addition to this requirement, the “capsule definition” of the Listing requires proof of
gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s), and
findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s).

20 C.F.R. Pt. 404, Subpt. P, app. 1, § 1.02. Plaintiff presents neither evidence nor argument suggesting
that her knee impairment met these further requirements. See Barnes v. Barnhart, 116 Fed. Appx. 934,
939 (10th Cir. 2004).
10

Instead, plaintiff points principally to her own allegations regarding her functional limitations.
(See Plf. Br. at 11.) Again, these issues will be considered more fully in connection with plaintiff’s
arguments regarding the ALJ’s assessment of her credibility.

9

was no prejudicial error in failing to consider the applicability of this Listing.
Plaintiff further perceives error in the ALJ’s consideration of the various medical
opinions of record. She claims that the ALJ improperly gave greater weight to the
opinion of the non-examining physician, Dr. Alan Ketelhorn (Tr. 186-193),11 than that of
Dr. Velma Campbell, a consultative examiner (Tr. 202-204). However, other than noting
the mere fact that the ALJ gave greater weight to Dr. Ketelhorn’s opinion, plaintiff offers
neither argument nor evidence suggesting that she erred in her evaluation of these
opinions.12
Nor do I perceive any error. Although it is true that Dr. Campbell’s opinion was
based on a personal evaluation of plaintiff, while Dr. Ketelhorn merely reviewed the
medical evidence of record, the nature of the examining relationship is but one factor
that bears on the weight to be given to a medical source opinion. See 20 C.F.R. §
404.1527(c)(1). The ALJ also properly considered that, other than knee surgery in
2003, plaintiff sought no treatment for her allegedly disabling impairments between June
5, 2002, and August 2006, when findings were comparatively mild. Although further
knee surgery was recommended in September 2007, plaintiff did not return for follow-up
until the following February (after her date last insured) and did not actually have

11

As discussed previously, plaintiff takes Dr. Ketelhorn’s notation that her complaints were
credible (Tr. 191) entirely out of context. (See supra note 5.) In addition, such a statement is not a
medical opinion at all, and therefore entitled to no special weight in the ALJ’s analysis. See 20 C.F.R. §
404.1527(a)(2); Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008).
12

Moreover, plaintiff fails to substantiate her bare ipse dixit insistence that adoption of Dr.
Campbell’s restrictions would have eliminated the alternative jobs identified by the vocational expert. The
court is under no obligation to make plaintiff’s arguments for her. Nevertheless, the testimony of the
vocational expert was not that the identified jobs would be eliminated, but, instead, that imposing Dr.
Campbell’s restrictions on lifting, carrying, and bending would erode the occupational base by 50 percent.
(Tr. 736.)

10

surgery until May 2008. Subsequently, even plaintiff’s own doctor suggested that she
was able to work with the restriction that she not stand, walk, or climb for long periods of
time. (Tr. 268, 494.) These considerations demonstrate good cause for the weight
assessed Dr. Ketelhorn’s and Dr. Campbell’s respective opinions.
As for the opinions of physician’s assistant, Betsy Goodwin (Tr. 637-642),13 and
Dr. Bruce Taylor (Tr. 494), the ALJ noted these opinions, but found them unpersuasive
because they did not relate to plaintiff’s functional abilities prior to her date last insured.
(Tr. 270.) Contrary to plaintiff’s argument, there was no ambiguity concerning whether
these opinions related to plaintiff’s functional capacity during the relevant period of time;
they patently did not.14 Nor was the ALJ required to recontact these sources. That duty
is triggered only when the ALJ is unable to reach a conclusion regarding disability based
on the evidence before her, not merely because she rejects a source’s opinion. See
White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).15
Moreover, the determination of a claimant’s residual functional capacity is
ultimately an administrative determination, 20 C.F.R. § 404.1546; Rutledge v. Apfel,

13

Ms. Goodwin’s March 2002 statement that plaintiff “is currently unable to work” (Tr. 513) not
only goes to the ultimate issue of disability, which is reserved exclusively to the Commissioner, see 20
C.F.R. § 404.1527(d)(2), but also was issued during the period for which plaintiff in fact was found
disabled, see 20 C.F.R. §404.1527(a)(2). See also 20 C.F.R. § 404.1513(d). See also Social Security
Ruling 06-03p, 2006 WL 2329939 at *2; Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007). The
failure to consider this statement therefore undoubtedly was harmless.
14

Dr. Taylor only began treating plaintiff in 2008, after her date last insured. Any opinion of his
on her condition prior to that date, therefore, would not have been entitled to the same presumption of
controlling weight as would that of a medical source who had seen and treated plaintiff during the relevant
time period. See Vendetti v. Astrue, 2010 WL 3516652 at *4 (D. Colo. Aug. 31, 2010).
15

In addition, the failure to specifically address plaintiff’s neighbor’s testimony did not constitute
error. Although statements from “other sources” must be considered, there is no requirement that they be
weighed in the same manner as medical opinions. See Weaver v. Astrue, 353 Fed. Appx 151, 154-55
(10th Cir. Nov. 18, 2009).

11

230 F.3d 1172, 1175 (10th Cir. 2000), not a medical one. Accordingly, the ALJ is under
no obligation to base her residual functional capacity assessment on any particular
medical source’s opinion. See Moses v. Astrue, 2012 WL 1326672 at *4 (D. Colo April
17, 2012). In this instance, it is clear that she properly resolved the relatively minor
conflicts in the evidence in reaching her determination. See Reyes v. Bowen, 845 F.2d
242, 245 (10th Cir. 1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D. Kan. Sept. 1,
1999). See also Lax v. Astrue, 489 F.3d 1080, 1088 (10th Cir. 2007) (“The
substantial-evidence standard does not allow [the court] to displace the agencies'
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.”) (citation and internal
quotation marks omitted).16 Thus, remand is not indicated on this basis either.
Lastly, plaintiff claims the ALJ erred in discrediting her subjective complaints of
pain. “[C]redibility determinations ‘are peculiarly the province of the finder of fact,’ and
should not be upset if supported by substantial evidence.” White, 287 F.3d at 909
(citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the ALJ links
her credibility assessment to specific evidence in the record, her determination is
entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000).17
16

For this same reason, there was no error in the hypothetical the ALJ propounded to the
vocational expert. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993).
17

The record contains the most fleeting of suggestions that plaintiff received both short- and
long-term disability benefits from her employer. (See Tr. 226.) Nothing in the record suggests how long
plaintiff received such benefits or anything about the considerations that informed the decision to afford
such benefits to plaintiff. Thus, and although an ALJ generally must acknowledge and consider the
disability determinations of other agencies, see Grogan v. Barnhart, 399 F.3d 1257, 1262-63 (10th Cir.
2005), this oversight was undoubtedly harmless, see Bernal, 851 F.2d at 303.

12

The ALJ reviewed the evidence of record, noting minimal treatment during the
majority of the relevant time period. Although plaintiff had knee surgery within six
months after her date last insured, she was reported to be “doing well” postoperatively,
“making good progress with range of motion in the leg” such that “[s]he is now basically
back to full range of motion” and “doing all of her activity” despite “occasional pain” that
“come[s] and go[es] and has been getting gradually better.” (Tr. 497.) The ALJ noted
that despite plaintiff’s complaints of unremitting pain, she exhibited normal or
unremarkable findings on examination by her treating orthopedist. (Tr. 268, 495-496.)
All of this evidence is more than adequate to support the ALJ’s credibility
determination.18
Thus, although there is no doubt that plaintiff continues to suffer from pain related
to her impairments, “disability requires more than mere inability to work without pain.”
Brown v. Bowen, 801 F.2d 361, 362–63 (10th Cir. 1986) (citation and internal quotation
marks omitted); see also Qantu v. Barnhart, 72 Fed. Appx. 807, 811 (10th Cir. 2003)
(“We emphasize that a claimant's inability to work pain-free, standing alone, is not
sufficient reason to find her disabled.”). The ALJ gave good reasons, specifically tied to
the evidence of record, for discrediting plaintiff’s subjective complaints. I see no basis
to afford her credibility determination less than the substantial deference to which it is

18

Nor do I perceive error in the ALJ’s consideration of plaintiff’s activities of daily living. (See Tr.
265-266.) Although activities of daily living do not necessarily translate to the ability to perform workrelated activities on a sustained basis, Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993), they
do bear on a plaintiff’s credibility “to the extent that the level of activity is in fact inconsistent with the
claimed limitations,” Ouellette v. Apfel, 2000 WL 1262642 at *13 (N.D. Cal. Aug. 24, 2000).

13

presumptively entitled.19
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 20, 2014, at Denver, Colorado.
BY THE COURT:

19

Plaintiff’s claim that the ALJ’s credibility assessment is faulty because it fails to specifically
address the various factors set forth at 20 C.F.R. § 404.1529(c) is unavailing. The regulation requires only
that the ALJ consider these factors, not that she explicitly make findings as to each and all of them in her
decision, and, thus, the ALJ was not required to undertake the type of mechanical incantation of the
evidence on which plaintiff insists. See Qualls, 206 F.3d at 1372

14