Ibarra v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER. The court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 9/1/17. (lb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
COMMISSIONER OF SOCIAL
Case No. CIV-16-1420-SM
MEMORANDUM OPINION AND ORDER
Olga Ibarra (Plaintiff) brings this action for judicial review of the
Commissioner of Social Security’s (Commissioner) final decision that she was
not “disabled” under the terms of the Social Security Act. See 42 U.S.C. §§
405(g), 423(d)(1)(A). The parties have consented under 28 U.S.C. § 636(c) to
proceed before a United States Magistrate Judge. Doc. 17.
After a careful review of the record (AR), the parties’ briefs, and the
relevant authority, the undersigned affirms the Commissioner’s final decision.
See 42 U.S.C. § 405(g).
The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just his underlying impairment.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 21819 (2002)).
Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that he can no longer engage in his prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that
prima facie showing, the burden of proof then shifts to the Commissioner to
show Plaintiff retains the capacity to perform a different type of work and that
such a specific type of job exists in the national economy. Id.
Administrative Law Judge (ALJ) findings.
The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis in order to decide whether Plaintiff was disabled during the relevant
time period. AR 20-26;1 see 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4); see also
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step
process). Specifically, the ALJ found Plaintiff:
was severely impaired by first, rheumatoid arthritis, second,
by degenerative disc disease, third, by sciatica, fourth, by
osteoarthritis, and fifth, by status post two right shoulder
surgeries, March 2012 right knee surgery, and September
2014 right hip surgery;
had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;
had the residual functional capacity2 (RFC) for light work
except that Plaintiff can only:
occasionally climb ramps and stairs, balance, stoop,
kneel, crouch, and crawl,
never climb ropes, ladders or scaffolds,
occasionally work overhead,
as to the use of her upper extremities below overhead
level, frequently, but not constantly, reach, handle,
finger, and feel,
frequently, but not constantly, use her lower
extremities to operate foot pedals and controls,
must avoid exposure to vibration, and
must avoid exposure to workplace hazards, such as
dangerous moving machinery and unprotected
was able to perform certain past relevant work; and so,
For the parties’ briefs, the undersigned’s page citations refer to this
Court’s CM/ECF pagination. Page citations to the AR refer to that record’s
Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
had not been under a disability as defined by the Social
Security Act since June 6, 2011 through the date of the ALJ’s
decision, April 20, 2015.
Appeals Council action.
The Social Security Administration’s Appeals Council found no reason to
review that decision, so the ALJ’s decision is the Commissioner’s final decision
in this case. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir.
Judicial review of the Commissioner’s final decision.
The court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084. A decision is not based on
substantial evidence “if it is overwhelmed by other evidence in the record.”
Wall, 561 F.3d at 1052 (internal quotation marks omitted). The court will
“neither reweigh the evidence nor substitute [its] judgment for that of the
agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal
quotation marks omitted).
Issue for judicial review.
Plaintiff contends “[t]he [ALJ] failed to consider [Plaintiff’s] subjective
statements under the correct legal standards.” Doc. 16, at 9.
Plaintiff begins her challenge to the legal sufficiency of the ALJ’s
evaluation of her credibility by noting what an ALJ is required by law and
regulation to consider, evaluate, weigh, link, and document in making a
credibility determination. Id. at 10-13. Plaintiff asserts the ALJ “failed to
evaluate [Plaintiff’s] subjective statements under the correct legal standards:”
maintaining his analysis was merely “(1) a summary of [Plaintiff’s] subjective
statements, (2) a summarization of the medical record, and (3) a series of four
conclusory boilerplate statements.” Id. at 13 (record citations omitted).
“[An] ALJ’s credibility findings warrant particular deference.” White v.
Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). “Credibility determinations are
the province of the factfinder, and [a court] will not upset them” when
“supported by substantial evidence.” Lykins v. Colvin, 657 F. App’x 726, 728
(10th Cir. 2016) (citing Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010)).
But such “credibility findings ‘should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.’” Id.
(quoting Wilson, 602 F.3d at 1144).
Furthermore, the ALJ cannot ignore
evidence favorable to the plaintiff. Clifton v. Chater, 79 F.3d 1007, 1010 (10th
When analyzing evidence of pain, the court does not require a formalistic
factor-by-factor recitation of the evidence. Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000). So long as the ALJ sets forth the specific evidence he relies
on in evaluating the claimant’s credibility, the ALJ will be deemed to have
satisfied the requirements set forth in Kepler v. Chater, 68 F.3d 387, 391 (10th
Cir. 1995); White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2002). Those factors
the levels of medication and their effectiveness, the extensiveness
of the attempts . . . to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of
credibility that are peculiarly within the judgment of the ALJ, the
motivation of and relationship between the claimant and other
witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Wilson, 602 F.3d at 1145 (quotation omitted).
First, Plaintiff argues the ALJ’s summary, “standing alone,” “without an
explanation how the ALJ applied the factors to the subjective statements and
medical records is inadequate . . . .” Doc. 16, at 13. Second, she attacks the
use of disfavored boilerplate. Id. at 15. She maintains that “a lack of support
from the objective medical evidence cannot be the sole reason for rejecting [her]
subjective statements.” Id.
It is error for the ALJ to use standard boilerplate language that fails to
set forth the “specific evidence” the ALJ considered in determining that a
claimant’s complaints were not credible. Hardman v. Barnhart, 362 F.3d 676,
679 (10th Cir. 2004).
On the other hand, when an ALJ’s credibility
determination does not rest on mere boilerplate language, but is linked to
specific findings of fact fairly derived from the record, it will be affirmed by the
court. White v. Barnhart, 287 F.3d 903, 909-10 (10th. Cir. 2000). Here, the
ALJ linked his credibility analysis to specific findings of fact. The ALJ noted
Plaintiff “obtains medical care and takes medication for her impairments,” and
reviewed her prescriptions. AR 24. He reviewed Plaintiff’s medical history,
surgeries, and medical contacts since 2011.
Id. at 20-24.
Plaintiff’s daily activities. Id. at 20. And he considered the “consistency . . . of
nonmedical testimony with objective medical evidence.” Wilson, 602 F.3d at
1145; see AR 21-24.
Though the ALJ used boilerplate language in spots,3 he linked his
analysis to specific findings of fact. He noted Plaintiff’s late 2011 assessment
with “cervical and lumbar degenerative disc disease.”
See e.g., AR 25 (“After careful consideration of the evidence, . . . the
claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons explained in
confirmed she “does have a very small amount of stenosis, . . . this appears to
be mild to moderate,” and Dr. Michael D. Martin found “full strength in all
extremities,” “normal gait and station,” and “mild decreased sensation in the
right lower extremity.” Id. (quoting id. at 549). The ALJ noted objective
medical evidence supports Plaintiff’s allegations of pain and discomfort, but in
December 2011, she was standing for prolonged periods and exercising
regularly, walking one to two miles a day. Id. And, the ALJ noted her October
2011 echocardiogram produced results inconsistent with her complaints of
angina and dyspnea with exertion. Id.; see id. at 672.
The ALJ noted Plaintiff’s complaints of pain, which the objective medical
evidence appeared to discount.
For example, in January 2013, Plaintiff
complained of burning and tingling in in her lower extremities. Id. at 22. An
April 2013 MRI “revealed findings similar to those in 2011,” with “no evidence
of a disc herniation, central canal stenosis, or neutral foraminal stenosis within
the lumbar spine.” Id. And in July 2013, she “complained of hand pain, but
electromyography revealed results within normal limits.” Id.; see id. at 827.
The ALJ supplemented his boilerplate statements with “specific evidence,”
determination. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
Plaintiff identifies no specific postural limitation that, in her view, the
ALJ should have imposed, given the record before him. Correspondingly, she
does not address—or acknowledge—the postural limitations the ALJ did
include in the RFC.
Likewise, Plaintiff ignores the significant
restriction the ALJ imposed due to the effects of her severe physical
impairments: a limitation to light work. Id.
Similarly, Plaintiff’s attack on the ALJ’s reliance on her activities of
daily living fails. In attacking the ALJ’s “mention[ing of her] daily activities
of caring for her mother and her household,” she insists “it is improper for an
ALJ to rely on daily activities to reject a claimant’s subjective complaints.”
Doc. 16, at 16.
The ALJ made more than a “passing reference” to Plaintiff’s daily
Ms. Ibarra acknowledged she drives every day to take her
daughter to school and pick her up after school, as well as to
shop, but testified she drove more two years ago. The claimant
went with her daughter to Mexico in March 2014, with her
daughter driving the camper, to see the claimant’s ill brother.
Ms. Ibarra testified she lied down during the trip on a bed in a
camper. She notes she spends time cleaning, doing laundry,
washing dishes occasionally, taking out the trash, making meals
daily, shopping for grocery weekly, managing her finances,
watching TV, reading, visiting with her older daughter, visiting
with others who come to her home, talking on the telephone,
going out to eat, and attending church twice a month, although
the claimant previously reported going to church daily. She
acknowledged she was walking two miles at a time two years
ago, but testified she stopped doing that about one or one and onehalf years ago. She acknowledged that two years earlier, she
could sit and stand for longer periods than she can today. The
claimant takes care of her own finances. She uses Facebook once
or twice a week, but denied using a computer. The claimant
subsequently testified she uses her daughter’s Internet service.
AR 20; see Doc. 16, at 16. And the ALJ was not referring to merely “sporadic
instances” of activities, as Plaintiff posits. Doc. 16, at 16.
The claimant’s acknowledgement of significant daily activities,
including taking care of her Mother and her household, the
improvement in some of her symptoms with treatment and
medication, and examinations showing functional and adequate
findings to work, and the fact none of her treating physicians
opine she cannot work all weaken the credibility of the
The claimant does experience some
limitations but only to the extent accounted for in the residual
functional capacity above.
The ALJ did not rely on Plaintiff’s activities of daily living as the sole
basis for finding Plaintiff not fully credible. Instead, he used them as one part
of his adverse credibility finding, as the Commissioner’s regulations require
and binding case law recognizes.
See 20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i) (stating that an ALJ may consider a Plaintiff’s daily activities
as part of credibility evaluation); Wilson, 602 F.3d at 1146 (considering ALJ’s
reliance on Plaintiff’s daily activities as permissible part of substantial
evidence supporting credibility evaluation); Thomas v. Berryhill, No. 16-1353,
--- F. App’x ---, 2017 WL 1359827, at *2 (10th Cir. Apr. 13, 2017) (“Although
the record also contains evidence that [Plaintiff’s] daily activities are more
limited, the ALJ is in the best position to resolve such conflicts in the evidence
. . . .”). The ALJ was entitled to base her adverse credibility finding, in part,
on his performance of these activities.
The ALJ properly considered the
relevant factors and specifically set forth record evidence relied upon in
making his credibility determination. See Qualls, 206 F.3d at 1372.
Finally, Plaintiff contends the above errors tainted the RFC. Doc. 16, at
17-18. She points to no objective evidence, medical or otherwise, for support.
She does not challenge the ALJ’s evaluation of the opinion evidence, where he
gave “great weight” to the State agency physicians’ opinions “as set forth in
their [RFCs].” AR 25. Having found substantial evidence supporting the ALJ’s
credibility determination, Plaintiff’s argument that the ALJ’s “flawed
[credibility] evaluation” undermines the ALJ’s RFC also fails. Doc. 16, at 16.
Plaintiff has failed to establish reversible error. Here, the ALJ properly
and sufficiently explained the required link between the evidence of record and
his finding that Plaintiff’s allegations of disabling pain and other limitations
were not entirely credible. “[H]is approach performed the essential function of
a credibility analysis by indicating to what extent he credited what [Plaintiff]
said when determining the limiting effect of [Plaintiff’s] symptoms.” KeyesZachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012).
The ALJ’s determination—that Plaintiff’s subjective complaints are not
entirely believable—is supported by substantial evidence and is free from legal
The court AFFIRMS the Commissioner’s decision.
ENTERED this 1st day of September, 2017.
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