Chewie v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Paul J Cleary Affirming the Commissioner's decision (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KIMBERLY SUE CHEWIE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,1
Defendant.

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Case No. 12-CV-590-PJC

OPINION AND ORDER
Claimant, Kimberly Sue Chewie (“Chewie”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for disability insurance benefits and supplemental
security income benefits under the Social Security Act, 42 U.S.C. §§ 401 et seq. In accordance
with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before a United States
Magistrate Judge. Any appeal of this order will be directly to the Tenth Circuit Court of
Appeals. Chewie appeals the decision of the Administrative Law Judge (“ALJ”) and asserts that
the Commissioner erred because the ALJ incorrectly determined that Chewie was not disabled.
For the reasons discussed below, the Court AFFIRMS the Commissioner’s decision.

1

Pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, the current Acting
Commissioner of the Social Security Administration, is substituted for Michael J. Astrue as
Defendant in this action. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Claimant’s Background
Chewie was 46 years old at the time of the hearing before the ALJ on December 10, 2010.
(R. 38). She did not graduate from high school and did not have a GED. (R. 42). She did attend a
cosmetology vocational school. (R. 41). Chewie had previously worked on an assembly line and
as a beautician. (R. 61-62). Her last job was at a convenient store where she operated the cash
register and stocked the coolers. (R. 61).
Chewie alleged an inability to work due to a problem with her left hand. (R. 47). She
testified that she had injured her hand in a car accident. (R.47-58). She said that she did not have
any feeling in the ring and middle fingers, down into the palm, or up the side of the thumb. (R.
48). She stated that these areas had been numb since the accident. Id. She also said that she
could only feel heat with the index finger. (R. 50).
Chewie testified that she experienced what she described as “ghost pains” in her left hand.
(R. 48). She explained that such pains felt as if someone was taking a knife and running it down
her fingers. Id. She said that these pains occurred mainly in cold weather. Id. She estimated that
the pain occurred once a day and lasted ten to thirty minutes. (R. 48-49).
Chewie stated that she could hardly use her left hand to pick up any weight nor could she
flatten her hand out completely. (R. 48). She said that she could not make a fist with her left
hand and she also had a difficult time opening up her hand enough to grip or carry things. (R. 4951). She stated that she could hold the steering wheel, but driving for a long period of time
bothered her hand. (R. 51).
Chewie additionally mentioned that as a result of her hand pain, she experienced
interrupted sleep. (R. 60). She testified that she would get five to six hours of sleep per night.
(R. 61). She would sleep for an estimated four hours and then wake up for one to two hours. Id.

2

She testified that she sometimes went back to sleep but would get up at five or six o’clock every
morning. Id.
In the two months following the accident, Chewie had problems performing normal daily
functions such as dressing and showering, so her husband had to assist her. (R. 59). When her
hand began healing, she was able to perform these functions on her own. Id. She stated that she
was able to cook, could lift pan lids with her left hand, and go grocery shopping. (R. 59-60). She
stated she still required the assistance of her husband in chores which required heavy lifting. (R.
60).
According to Chewie, although she had previously worked on an assembly line and as a
hairdresser, she did not think that she would be able to return to either of those jobs because they
required the use of both of her hands. (R. 62). She also believed that she was unable to return to
her job at the convenient store because it required lifting heavy milk cartons with both hands to
stock the freezers. Id. She testified that she was unable to do even one-third of the things she
used to do with her left hand. Id.
Chewie presented to the emergency room by ambulance at Washington Regional Medical
Center (“Washington”) on May 13, 2009, following a roll-over motor vehicle crash that resulted
in complaints of left wrist and forearm injuries. (R. 274-96). On initial examination, Chewie
admitted to consuming two alcoholic drinks prior to the accident. (R. 277). Observations of her
injuries included abrasions to the left forearm and a large skin and tendon laceration to the left
palm. Id. It was also noted that she had no sensation in her fingertips. (R. 275). X-rays
indicated an oblique extra-articular fracture of the distal left fifth metacarpal with mild palmar
angulation of the distal fracture fragment. (R. 292). Chewie was diagnosed by Andrew D.
Heinzelmann, M.D., with degloving of the palmar aspect of the left hand with a fifth metacarpal

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neck fracture. (R. 272, 274).
Dr. Heinzelmann then performed surgical irrigation and debridement of the left hand and a
complex laceration repair. (R. 274). In her postoperative assessment, she reported improved
sensation on the index and small finger and thumb. (R. 264). She also had regained brisk
capillary refill to all fingers. Id.
Chewie presented to Christopher Noel Henley, M.D., at Ozark Orthopaedics (“Ozark”) on
May 22, 2009, for a surgery follow-up and dressing change, as ordered by Dr. Heinzelmann. (R.
256-58). During the examination, Dr. Henley noted that Chewie appeared to be experiencing an
appropriate amount of pain, swelling, and had serious drainage of the left hand. (R. 257). Dr.
Henley noted that possible exploration of the wound could be necessary if her injuries had not
improved by her next visit. (R. 256).
On May 26, 2009, Chewie reported to Ozark for a second follow-up and dressing change
with Dr. Henley. (R. 255). He noted that she had not shown much improvement as her pain
remained constant and she denied any returned sensation in her ring and middle finger. Id. She
was diagnosed with digital nerve injury in the left and middle finger with possible nerve damage
to the right index finger, and a skin laceration with likely seroma.2 Id. Dr. Henley recommended
that Chewie proceed with surgical intervention to explore the wound, verify the integrity of the
nerves, deride the skin flap as necessary, and possibly perform a full thickness skin grafting
where appropriate. Id. She agreed with the plan to proceed with the surgery. Id.

2

Seroma is a tumor-like collection of serum, or the clear portion of any body fluid, in the
tissues. Dorland’s Illustrated Medical Dictionary 1628-29 (29th ed. 2000) (hereinafter
“Dorland’s”).
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Chewie arrived at Washington on May 28, 2009, for her scheduled exploratory surgery
with Dr. Henley. (R. 262). During surgery, Dr Henley discovered significant nerve damage,
including seroma with partial flap necrosis.3 Id. Dr. Henley performed a full thickness skin graft
by harvesting skin from her groin, repaired her digital nerves in her ring, middle, and index
fingers, and debited her skin and subcutaneous tissue. Id. She was then discharged with her
hand in a splint and a prescription for narcotic pain medication. Id.
On June 1, 2009, Chewie presented to Dr. Henley at Ozark for her postoperative wound
check. (R. 321). Dr. Henley removed the drain from her skin graft. Id. She complained of
heightened pain even though her swelling had gone down. Id. Dr. Henley noted concern about
stiffness in her hand but more concern about proper healing of the skin. Id.
Chewie returned to Ozark on June 8, 2009, to have most of her sutures removed. (R. 320).
Dr. Henley noted that the skin graft had taken well but that there were areas of epidermal lysis4
that would need wet to dry dressing changes. Id. He further noted that her hand was
“extraordinarily stiff” and that physical therapy would be ordered in her next visit. Id. She was
prescribed more pain medication. Id.
Chewie saw Dr. Henley on June 15, 2009, at Ozark for removal of the final sutures. (R.
319). Dr. Henley noted that there was some seroma between her thumb and index finger. Id. He
ordered Chewie to begin aggressive physical therapy and continue moist to dry dressings on the
raw areas between her ring and middle fingers. Id. Her narcotics prescription was also refilled.

3

Necrosis is the sum of the morphological changes indicative of cell death and caused by
the progressive degradative action of enzymes; it may affect groups of cells or part of a structure
or an organ. Dorland’s at 1180.
4

Epidermal lysis is the destruction of cells of the outermost and nonvascular layer of the
skin. Dorland’s at 605, 1041.
5

Id.
On June 22, 2009, Chewie reported continued pain to Dr. Henley. (R. 318). He noted that
the skin graft had gotten hard and had not yet become supple. Id. Dr. Henley was pleased to find
that Chewie had better than expected flexion of the index, middle and ring fingers. Id. However,
Dr. Henley noted that she was experiencing pain in her small finger with attempted passive
flexion, and her thumb was extraordinarily stiff. Id. Dr. Henley also found that distal joints of
her others fingers were stiff. Id. Chewie explained that she could not go to physical therapy for
her hand twice a week at Ozark because of the distance and requested changing to a physical
therapist closer to home. Id. Dr. Henley recommended that the new physical therapist contact
him. Id.
Chewie returned to Ozark on July 6, 2009 and Dr. Henley reported that he thought the
therapy was helping because she seemed to be doing better. (R. 317). He noted that her hand
looked 80% cleaner than her previous visit, but there were still some raw areas that were healing.
Id. Dr. Henley told Chewie to continue with the therapy and wound care and refilled her pain
prescription. Id.
On July 14, 2009, Chewie returned to Ozark for x-rays and pin removal. (R. 316). Dr.
Henley noted that there was some osteolysis of the hamate5 in the fifth finger, and it was worse
than the previous x-ray. Id. He continued with removal of the pins in her fifth finger. Id.
Chewie maintained that she was feeling better and happy with her progress. Id. She reported that
she had even tried cutting hair again with her hand. Id. Dr. Henley stated that her range of
motion was improving slightly but still extremely limited. Id. She was also able to pinch with

5

Osteolysis of the hamate is the dissolution or removal of calcium in the hook of the
bone. Dorland’s at 784, 1288.
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her fingers. Id. Dr. Henley ordered continued treatment and wound care. Id.
Chewie presented to Ozark on July 28, 2009, for a follow-up appointment. (R. 315). Dr.
Henley noticed that she had burnt the tips of her middle and ring finger, and that they had begun
to blister. Id. Dr. Henley also noted that there had been some significant contracture of the full
thickness skin graft in her left palm. Id. Limited range of motion of the thumb was noted. Id.
He further noted that she may need additional surgical intervention if aggressive occupational
therapy did not yield range of motion improvement. Id.
Chewie saw Dr. Henley on October 15, 2009, and reported that overall, she was happy
with the results and had even started driving again with her left hand. (R. 313-14). However,
she did report occasional sharp pain. Id. Dr. Henley noted that she still had numbness in her left
middle and ring fingers but sensation was returning in her index finger. Id. He concluded that
the nerve repair in her index finger had been successful but noted concern that the other nerve
repairs were less successful. Id. He explained to Chewie that she needed to continue aggressive
stretching and passive range of motion exercises and advised her that further surgery may still be
required in the future. Id.
Agency consultant David Wiegman, M.D., examined Chewie on August 22, 2009. (R.
297-303). On examination, Dr. Wiegman noted an obvious abnormality of Chewie’s left hand
with very bad scarring and skin grafts. (R. 298). Chewie had normal arm and leg strength at 5/5
with slightly decreased muscle strength in her left arm at 4/5. Id. She also had normal grip
strength in her right hand, but zero grip strength in her left hand. Id. She was unable to fully flex
or fully extend the fingers on her left hand. Id. Range of motion was normal everywhere except
her left hand, and could not fully flex or extend those fingers. Id. She experienced no sensation
to touch in her left third and fourth digits. Id. Straight leg raising was negative, and toe and heel

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walking was normal. Id. She had a normal, symmetric gait. Id. Chewie had good coordination
with normal opposition of the thumb to fingers in the right hand, but not with the left. Id. Dr.
Wiegman’s impression was severe left hand injury with minimal movement and constant
numbness, and essentially the loss of use of her left hand. Id. It was noted that Chewie was right
handed and was still going to physical therapy. Id. The Hand/Wrist Sheet showed that Chewie
had limited range of motion in flexion and hyper-extension of her left hand. (R. 302). The
Functional Evaluation Assessment reflected that she could not use her left hand to manipulate
small objects, effectively grasp tools such as a hammer, or effectively oppose the thumb to the
fingertips. Id.
Agency consultant Thurma Fiegel, M.D., completed a Physical Residual Functional
Capacity Assessment dated September 28, 2009. (R. 304-11). Dr. Fiegel’s opinion was that
Chewie could occasionally lift and carry up to twenty pounds and could frequently lift and carry
up to ten pounds. (R. 305). She further concluded that Chewie could stand, walk, and sit with
normal breaks for up to six hours in an eight-hour work day, and she had a limited ability to push
and pull with her upper extremities. Id. In the space for narrative explanation, Dr. Fiegel noted
Chewie’s surgery on May 28, 2009. Id. She summarized the medical evidence and Dr.
Wiegman’s examination. Id. She mentioned that Chewie was unable to operate controls with her
left hand. (R. 305-06). For manipulative limitations, Dr. Fiegel noted that Chewie was limited in
gross manipulation or handling and fine manipulation or fingering with only her left hand. (R.
307). She found that no other limitations were established. (R. 306-11).
Agency consultant John Pataki, M.D., completed an independent review of the medical
evidence and the Physical Residual Functional Capacity Assessment completed by Dr. Fiegel on
December 18, 2009. (R. 322). Dr. Pataki concurred with the Dr. Fiegel’s assessment of Chewie.

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Id.
Procedural History
Chewie filed applications in June 2009, seeking disability insurance benefits under Title
II, and supplemental security income benefits under Title XVI, 42 U.S.C. §§ 401 et seq. (R. 13440). In both applications, Chewie alleged onset of disability as May 13, 2009. (R. 134-38). The
applications were denied initially on September 28, 2009, and on reconsideration on December
18, 2009. (R. 86-93, 94-99). A hearing before ALJ John W. Belcher was held December 10,
2010. (R. 34-69). By decision dated January 10, 2011, the ALJ found that Chewie was not
disabled from May 13, 2009 through the date of the ALJ’s decision. (R. 22-30). On March 30,
2011, the Appeals Council denied review of the ALJ’s findings. (R. 7-12). Thus, the decision of
the ALJ represents the Commissioner’s final decision for purposes of this appeal. 20 C.F.R. §§
404.981, 416.1481.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act only if his
“physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability claim.
20 C.F.R. § 404.1520.6 See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (detailing

6

Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
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steps). “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.” Id.
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. The court’s review is based on the record taken as a whole, and the
court will “meticulously examine the record in order to determine if the evidence supporting the
agency’s decision is substantial, taking ‘into account whatever in the record fairly detracts from
its weight.’” Id. (quoting Washington v. Shalala), 37 F.3d 1437, 1439 (10th Cir. 1994). The
court “may neither reweigh the evidence nor substitute” its discretion for that of the
Commissioner. Hamlin, 365 F.3d at 1214 (quotation omitted).
Decision of the Administrative Law Judge
The ALJ found that Chewie met insured status requirements through December 13, 2013.

ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is
compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A
claimant suffering from a listed impairment or impairments “medically equivalent” to a listed
impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds
to Step Four, where the claimant must establish that he does not retain the residual functional
capacity (“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met,
the burden shifts to the Commissioner to establish at Step Five that work exists in significant
numbers in the national economy which the claimant, taking into account his age, education,
work experience, and RFC, can perform. See Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir.
2001). Disability benefits are denied if the Commissioner shows that the impairment which
precluded the performance of past relevant work does not preclude alternative work. 20 C.F.R. §
404.1520.
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(R. 24). At Step One, the ALJ found that Chewie had not engaged in any substantial gainful
activity since her alleged onset date of May 13, 2009. Id. At Step Two, the ALJ found that
Chewie had a severe impairment in her left hand. Id. At Step Three, the ALJ found that
Chewie’s impairment, or combination of impairments, did not meet a Listing. Id.
The ALJ determined that Chewie had the RFC to lift and/or carry no more than twenty
pounds occasionally and ten pounds frequently, walk for six to eight hours out of an eight hour
work day, and sit for no more than six to eight hours out of an eight hour work day. (R. 25).
Chewie was unable to perform fine and gross manipulation with the left hand, and she had no
feeling with the thumb, middle, and right fingers of the left hand. Id. At Step Four, the ALJ
found that Chewie was unable to perform any past relevant work. (R. 28-29). At Step Five, the
ALJ found that there were significant numbers of jobs in the national economy that Chewie could
perform, taking into account her age, education, work experience, and RFC. (R. 29). Therefore,
the ALJ found that Chewie was not disabled from May 13, 2009, through the date of his
decision. (R. 30).
Review
Chewie asserts only one point of error on appeal. She argues that the ALJ failed to
properly evaluate her credibility. Regarding this issue, the undersigned finds that the ALJ’s
decision is supported by substantial evidence and complies with legal requirements. Therefore,
the ALJ’s decision is affirmed.
Once a medically determinable impairment is established that could reasonably be
expected to produce symptoms complained of, the ALJ is required to evaluate the intensity,
persistence, and functionally limiting effects of the symptoms. 20 C.F.R. §§ 404.1529(c),
404.929(c). In order to do this, the ALJ must assess the credibility of the claimant’s statements
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regarding the symptoms and their functional effects. Social Security Ruling (“SSR”) 96-7p, 1996
WL 374186, at *1. Credibility determinations by the trier of fact are given great deference.
Hamilton v. Sec’y. of Health & Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
The ALJ enjoys an institutional advantage in making [credibility determinations].
Not only does an ALJ see far more social security cases than do appellate judges,
[the ALJ] is uniquely able to observe the demeanor and gauge the physical abilities
of the claimant in a direct and unmediated fashion.
White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2002). “[C]ommon sense, not technical
perfection, is [the] guide” of a reviewing court. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167
(10th Cir. 2012). In evaluating credibility, an ALJ must give specific reasons that are closely
linked to substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); SSR 967p, 1996 WL 374186. Some of the factors the ALJ may consider in assessing the credibility of a
claimant’s complaints include “the levels of medication and their effectiveness, the extensiveness
of the attempts... to obtain relief, the frequency of medical contacts, the nature of the daily
activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ,...
and the consistency of compatibility of nonmedical testimony with objective evidence.” Kepler,
68 F.3d at 391 (quotation and citation omitted).
In addressing Chewie’s credibility, the ALJ found that Chewie’s “statements about her
impairments and their impact on her ability to perform activities of daily living and basic
functions are not entirely credible in light of discrepancies between the claimant’s alleged
symptoms, and objective documentation in the file.” (R. 28). The ALJ also noted that “in
consideration of all the medical evidence, there appear[red] to be some inconsistency regarding
functional limitations and allegations, yielding to a partial allegation credibility assumption.” (R.
29). Although these statements consisted primarily of boilerplate language and standing alone,

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they would be insufficient to support the credibility analysis, the ALJ did consider other factors
and a more thorough analysis was conducted to support the ALJ’s determination. Kruse v. Astrue,
436 Fed. Appx. 879, 887 (10th Cir. 2011). The ALJ could have been more detailed in his
credibility analysis, but he did set forth sufficient and specific reasons for his finding that Chewie
lacked credibility.
For example, the ALJ discussed Chewie’s conservative treatment and lack of continuing
surgical care. (R. 29). The extent of the claimant’s efforts to obtain relief is a legitimate specific
reason for a finding of credibility. Kepler, 68 F.3d at 391; Hagar v. Barnhart, 102 Fed. Appx.
146, 148 (10th Cir. 2004) (unpublished) (ALJ was entitled to consider that, if the claimant’s
symptoms were as debilitating as asserted, she would have sought additional treatment). The
ALJ also stated that there were no opinions of treating or examining physicians indicating that
Chewie was disabled or had limitations greater than those found in his RFC determination. (R.
29). The Tenth Circuit has affirmed decisions in which the credibility was based in part on the
fact that no treating physician had placed restrictions on claimant. See, e.g., Boswell v. Astrue,
450 Fed. Appx. 776, 778 (10th Cir. 2011) (unpublished); Holden v. Astrue, 274 Fed. Appx. 675,
686 (10th Cir. 2008) (unpublished).
The ALJ also discussed Chewie’s daily activities in fairly extensive detail and concluded
that they were not limited to the extent one would expect, given her complaints of disabling
symptoms and limitations. (R. 28). It is entirely proper for an ALJ to consider a Claimant’s
activities of daily living (“ADLs”) when evaluating credibility. Hamlin, 365 F.3d at 1220.
Consideration of Chewie’s ADLs, which were more than minimal, as one aspect of the ALJ’s
credibility finding was not in error where it was not the sole reason for her determination. Kruse,
436 Fed. Appx. at 886; see also Cobb v. Astrue, 364 Fed. Appx. 445, 450 (10th Cir. 2010)
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(unpublished).
All of these were legitimate and specific reasons for finding Chewie less than fully
credible, and these reasons were closely linked to substantial evidence. Faced with this
assessment, Chewie first argues that it was improper for the ALJ to rely on her daily activities
when assessing credibility. Plaintiff’s Opening Brief, Dkt. #15, p. 5. However, as discussed
above, it is proper for an ALJ to consider a claimant’s ADLs. In the cases Chewie relied on in
support of her argument, the ALJs had used the claimants’ sporadic performances of minimal
activities as evidence that the claimants were capable of engaging in substantial gainful activity
on a regular and continuing basis (citing Broadbent v. Harris, 698 F.2d 407 (10th Cir. 1983);
Byron v. Heckler, 742 F.2d 1232 (10th Cir. 1984); Frey v. Brown, 816 F.2d 508 (10th Cir. 1987);
and Thompson v. Sullivan, 987 F.2d 1482 (10th Cir. 1993)). The undersigned agrees that if the
ALJ had relied solely on her daily activities as an indication that Chewie was capable of engaging
in substantial gainful activity on a regular and continuing basis, his assessment could have been
improper. Here, however, the ALJ properly considered the consistency of Chewie’s daily
activities with the severity of symptoms and limitations that she alleged. See 20 C.F.R. §§
404.1529(c)(3)(I), 416.929(c)(3)(I) (stating that the first relevant factor than an ALJ must
consider in evaluating a claimant’s subjective complaints is daily activities).
Second, Chewie argues that the ALJ contradicts himself by making the observational
statement that limited daily activities cannot be objectively verified but then relies on Chewie’s
daily activities as evidence supporting her ability to work. As Chewie correctly points out, the
consideration of the lack of objective verification is one factor to be used in assessing the
credibility of her testimony. See Keyes-Zachary, 695 F.3d at 1168. Chewie’s argument is
misguided however, in that the ALJ did not rely solely on the lack of objective verification but
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rather mentioned it as only one factor, among many, in assessing her credibility.
Chewie also argues that she should not be penalized for her financial inability to afford
treatment. The Court agrees that the ALJ should have directly addressed this portion of Chewie’s
testimony7 when he addressed her treatment. See Thomas v. Barnhart, 147 Fed. Appx. 775, 760
(10th Cir. 2005) (unpublished) (faulting ALJ for failing to comment on evidence that claimant
could not afford medications). Had the ALJ included a discussion of this evidence, he would still
have been entitled to conclude that her failure to seek treatment was a factor supporting his
finding of reduced credibility. See 20 C.F.R. §§ 404.1529(c)(3)(v)-(vi). 416.929(c)(3)(v)-(vi)
(requiring an ALJ to consider a claimant’s treatment and other measures the claimant uses to
relieve symptoms in evaluating the claimant’s subjective complaints). Morever, even if this factor
was omitted from the ALJ’s justification of his finding of reduced credibility, the other factors
would still be substantial evidence supporting the ALJ’s decision. Under these circumstances, the
ALJ’s failure to explicitly discuss Chewie’s testimony that she could not schedule a new
appointment until she paid her outstanding bill was harmless error. See Keyes-Zachary, 695 F.3d
at 1173 (ALJ’s failure to mention non-determinative factor was harmless error given
circumstance of case).
In sum, the ALJ’s credibility assessment here was adequate. Chewie’s arguments to the
contrary simply are not persuasive. “[T]he ALJ closely and affirmatively linked his adverse
credibility finding to substantial evidence in the record and did not employ an incorrect legal
standard. ‘Our precedents do not require more, and our limited scope of review precludes us from

7

At the hearing, Chewie was asked: “And I think we know why, but just to make sure we
make it clear, why haven’t you been back to Dr. Henley?” Her response: “Because when I made
my follow-up appointments, and so, I still owed him $100 and I think it was $8, 108 they told me
until I paid that, I couldn’t get an appointment.” (R. 57).
15

reweighing the evidence or substituting our judgment for that of the agency.’” Zaricor-Ritchie,
452 Fed. Appx. at 824, citing Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (further
quotations omitted).
Conclusion
The decision of the Commissioner is supported by substantial evidence and the correct
legal standards were applied. The decision is AFFIRMED.
Dated this 17th day of December 2013.

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