Patterson v. Commissioner of the Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER. The Court affirms the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 11/18/21. (lb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHERKENYA M. PATTERSON, )
)
Plaintiff,
)
)
v.
)
)
KILOLO KIJAKAZI,
)
ACTING COMMISSIONER OF )
SOCIAL SECURITY,
)
)
Defendant.
)

Case No. CIV-20-969-SM

MEMORANDUM OPINION AND ORDER
Sherkenya M. Patterson (Plaintiff) brings this action for judicial review
of the Commissioner of Social Security’s final decision that she was not
“disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A).
The parties have consented to the undersigned for proceedings consistent with
28 U.S.C. § 636(c). Docs. 16, 18.
Plaintiff asks this Court to reverse the Commissioner’s decision and
remand the case for further proceedings, claiming that the administrative law
judge’s (ALJ) decision lacks substantial supporting evidence and that he failed
to properly assess the consistency of Plaintiff’s subjective complaints with the
medical evidence of record. Doc. 20, at 3. After a careful review of the

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administrative record (AR), the parties’ briefs, and the relevant authority, the
Court affirms the Commissioner’s decision. See 42 U.S.C. § 405(g).1
I.

Administrative determination.
A.

Disability standard.

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 [the claimant’s] underlying impairment.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535
U.S. 212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff

Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the AR will refer to its original
pagination.

1

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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.
C.

Relevant findings.
1.

Administrative Law Judge’s findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis to decide whether Plaintiff was disabled during the relevant
timeframe. AR 11-12; 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). The ALJ found that Plaintiff:
(1)

had not engaged in substantial gainful activity since March
1, 2016, the alleged onset date;

(2)

has the following severe impairments: multiple sclerosis (MS)
and obesity;

(3)

has no impairment or combination of impairments that meets
or medically equals the severity of a listed impairment;

(4)

has the residual functional capacity 2 (RFC) to perform
sedentary work, but is limited to simple, repetitive tasks with
only occasional interaction with supervisors or co-workers
and cannot interact with the public;

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).

2

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(5)

has no past relevant work;

(6)

can perform jobs that exist in significant numbers in the
national economy, such as document preparer, semiconductor bonder, touch-up screener; and so,

(7)

was not under disability from March 1, 2016, through April
9, 2020.

See AR 12-19. The claimant bears the burden of proof through step four of the
analysis. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006).
2.

Appeals Council’s findings.

The Social Security Administration’s Appeals Council denied Plaintiff’s
request for review, see AR 1, making the ALJ’s decision “the Commissioner’s
final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327
(10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standard.

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; see also Biestek v. Berryhill, 139
S. Ct. 1148, 1154 (2019) (“It means—and means only—such relevant evidence
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as a reasonable mind might accept as adequate to support a conclusion.”)
(quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)). A
decision is not based on substantial evidence “if it is overwhelmed by other
evidence in the record.” Wall, 561 F.3d at 1052. 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).
B.

Issues for judicial review.

Plaintiff’s claims are: (1) “[t]he ALJ failed to follow the required legal
standards so his hypothetical question to the [vocational witness], the RFC,
and Step Five findings are not supported by the required substantial evidence”;
and (2) “[t]he ALJ failed to properly assess the consistency of [Plaintiff’s]
complaints with the evidence of record.” Doc. 20, at 3, 13.
III.

How the ALJ crafted the RFC.
The ALJ arrived at the RFC assessment after considering Plaintiff’s

hearing testimony, her treatment history, the objective medical evidence, and
the nonmedical-source opinion. AR 13-17.
The ALJ explained that the medical evidence of record is inconsistent
with Plaintiff’s “statements about the intensity, persistence, and limiting
effects of her symptoms,” as well as the adult function report submitted by

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Plaintiff’s sister. Id. at 14-15. During her March 2020 testimony, Plaintiff
characterized her vision problems as “blindness” related to MS. Id. at 14, 36.
On March 16, 2017, Plaintiff complained of “blurred vision.” Id. at 14, 390. And
although at that appointment “[s]he alleged she could not see out of her left
eye,” she “reported she was caring for her [m]other and raising a [two]-yearold child.” Id. at 14, 391. The ALJ also pointed out that Plaintiff “successfully
completed a handwritten Adult Function Report on November 27, 2018,” in
which she reported “she could shop in stores, count change, pay bills, watch
television, read, and play card games.” Id. at 14, 273. She follows written
instructions “somewhat okay.” Id. at 14, 274. And treatment notes from
January 2019 include a note that Plaintiff “had blurry vision in the right eye
for [two] years starting in 2014” which “completely resolved afterward.” Id. at
14, 423.
Next the ALJ summarized Plaintiff’s testimony. Plaintiff testified she
was taking Tecfidera, an MS medication, but that she had not recently looked
for a job “because she thinks she shakes too much to work.” Id. at 14, 37. She
also stated she “could not do a sit down job due to pain,” which she feels
“everywhere.” Id. at 15, 46. She has “weakness in her hands” and has a brace

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for one hand. Id. at 15, 53. She “falls down whenever she tries to walk” and has
“fallen down at least once a day every day this year.” Id. at 15, 49.
As for Plaintiff’s daily activities, she indicated she “frequently drop[s]
things” and “d[oes] not prepare meals.” Id. at 14, 37, 45. “[S]he lost her last job
taking care of old people because she was unable to perform the household
chores which were required.” Id. at 14, 37-38. While she has two children, ages
two- and five-years old, she has “difficulty buttoning clothes and need[s] help
dressing.” Id. at 14, 39, 45.
The ALJ surveyed the progression of Plaintiff’s MS-related complaints
and the related objective medical evidence. She received a magnetic resonance
imaging (MRI) brain scan in March 2017 due to complaints of headaches and
blurred vision. Id. at 15. That scan showed patterns attributable to MS. Id.
Follow-up records in August of that year noted the MS diagnosis and vision
problems in Plaintiff’s left eye, noting also that her hands shake when she tried
to perform a task. Id. at 16, 508. “An assessment indicated tingling in the
extremities, visual loss in the left eye, and action tremor,” and Plaintiff
“confirmed these symptoms.” Id.
Plaintiff presented at the emergency room in August 2017 for abdominal
pain and nausea but did not mention MS or related symptoms. Id. at 16, 642.

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In June 2018 she again presented at the emergency room, this time for
drainage from a cesarean section incision; at that time, “[n]o [MS] related
symptoms were found” and “she reported no eye problems, no musculoskeletal
problems, and no neurological problems.” Id. at 16, 629.
In December 2018, Plaintiff had “normal range of motion, strength, and
tone,” though with “slow and clumsy” rapid alternative movements. Id. at 16,
421. Her MS was believed to be relapsing and recurring. Id. at 16, 425. “[S]he
was shown to have mildly slow mental processing and a clumsy right hand
with a positive Hoffman’s sign,” but “[h]er finger to nose coordination was
intact bilaterally,” and “[s]he maintained a normal casual gait but an unstable
tandem gait.” Id. at 16, 424-25.
In July 2019, Plaintiff reported to the emergency room for a heel injury
and “reported no acute musculoskeletal deformities or complaints, no change
in level conscious, change in mental status, seizure activity, and no psychiatric
or behavioral issues.” Id. at 16, 566.
The ALJ also considered the adult function report submitted by
Plaintiff’s sister-in-law but did not find the report persuasive, “as it appears
significantly inconsistent with the objective physical examination finding in
the claimant’s medical record.” Id. at 16.

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Moreover, Ms. Thomason’s report appears to focus almost
exclusively upon what the claimant is sometimes unable to do,
rather than upon what she can consistently do. Ms. Thomason
reported the claimant had difficulty writing while at the same time
reporting that the claimant had no problems providing her own
personal care. She stated the claimant the claimant’s “hands shake
uncontrollably[.”] Whereas her medical records show she had a
clumsy right hand and positive Hoffman’s sign. A May 2017
physical examination revealed no motor or sensory deficits. It was
noted the claimant’s neurologic examination was generally
nonfocal.
Id.
The ALJ also found unpersuasive the state agency physicians’ opinions
that Plaintiff is “capable of an eroded range of light work.” Id. at 17. Evidence
at the hearing level demonstrated Plaintiff’s poor midline balance, “which
would clearly support a more significant restriction on standing [and]
walking[,] as well as lifting and carrying.” Id. at 17, 517. The ALJ therefore
found the evidence “more reasonably supports a sedentary [RFC] assessment.”
Id. at 17. The ALJ concluded that, given “the combination of [MS] and obesity,”
Plaintiff is able to occasionally lift or carry ten pounds, frequently lifting or
carrying less than ten pounds, standing or walking at least two hours during
an eight-hour workday, and sitting for at least six hours in an eight-hour
workday. Id. This conclusion was based on a December 2018 physical
examination revealing Plaintiff had “normal range of motion, strength, and

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tone” but that “her rapid alternating movements were slow and clumsy,” as
well as the ALJ’s conclusion that she would “at least occasionally lift and carry”
her two-year-old son. Id. at 17, 421.
The ALJ was also unpersuaded by the opinion of the state agency
psychological consultant, id. at 17, and instead found Plaintiff had greater
limitations: Plaintiff’s “mildly slow mental processing,” id. at 685, limits her to
“performing simple, repetitive tasks with occasional interaction with
supervisors or co-workers, but no work with the public,” id. at 17.
IV.

Analysis of the ALJ’s decision.
A.

Substantial evidence supports the ALJ’s RFC assessment.

Plaintiff first claims a faulty RFC assessment because the ALJ failed to
fully account for Plaintiff’s manipulative limitations and her balancing,
walking, and standing limitations in questioning the vocational witness. Doc.
20, at 4-5. Second, Plaintiff claims the RFC does not accurately reflect
Plaintiff’s mental limitations because the assigned employment requires more
than the “simple, repetitive tasks” the ALJ limited her to. Id. at 7.
As a general matter, the “mere presence” of a condition does not prove
functional limitations amount to disability. See Coleman v. Chater, 58 F.3d
577, 579 (10th Cir. 1995). Instead, what matters is “whether the condition

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results in work-related limitations.” Paulsen v. Colvin, 665 F. App’x 660, 668
(10th Cir. 2016); Brown v. Chater, 64 F.3d 669, 1995 WL 490275, at *2 (10th
Cir. Aug. 16, 1995) (“The presence of a condition or ailment, without
accompanying evidence that the condition results in some functional limitation
on the ability to do basic work activity, is insufficient to establish a disability.”).
Plaintiff points to no evidence to support greater work-related limitations than
what the ALJ found, and it was her burden to put such evidence before the
ALJ. See Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (Claimant
“has the burden to provide evidence of claimant’s functional limitations. . . .
unless the ALJ’s duty to further develop the record is triggered.”).
1.

Plaintiff’s physical limitations.

Plaintiff claims the ALJ erred by failing to include more stringent
workplace limitations to accommodate Plaintiff’s “shaking and tremors,” as
unskilled sedentary jobs typically require good use of both hands and sets of
fingers, that is “bilateral manual dexterity.” Doc. 20, at 4-5; SSR 96-9p, 1996
WL 374185, at *8 (July 2, 1996). However, as the Commissioner points out,
Plaintiff does not direct the Court to any medical opinion assessing manual
manipulative limitations. Doc. 23, at 5; see also Qualls v. Astrue, No. CIV-09922-M, 2010 WL 4295798, at *6 (W.D. Okla. Sept. 23, 2010) (noting that “[n]o

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doctor has placed any exertional or nonexertional limitations on Plaintiff due
to . . . MS” and upholding ALJ’s RFC determination with exertional limitations
only), adopted, 2010 WL 4286161 (W.D. Okla. Oct. 22, 2010), aff’d, 428 F. App’x
841 (10th Cir. 2011). Indeed, “[t]he mere presence of MS is not determinative;
instead, it is whether it causes limitations that prevent Plaintiff from
working.” Qualls, No. CIV-09-922-M, 2010 WL 4295798, at *6.
Plaintiff asserts the ALJ erred by considering Plaintiff’s report in August
2017 that her MS-related “action tremor” was “not affecting her ability to
function at that time.” AR 17, 508 (noting “some shaking in hands – when
trying to perform a task – not affecting ability to function at this time”).
Plaintiff argues the ALJ’s reliance was misplaced because her symptoms had
worsened by the time of her hearing and the ALJ’s decision, as evidenced by
imprecise handwriting, an illegible signature, and completed forms “marred by
spastic pen marks in all directions.” Doc. 20, at 4. But even though “an
inference that [Plaintiff’s] coordination had deteriorated more severely might
also be supportable,” the possibility that the ALJ might have drawn either of
two conclusions from the evidence does not mean his conclusion was not
supported by substantial evidence. Barker v. Astrue, 459 F. App’x 732, 738
(10th Cir. 2012) (“But as we have said, ‘the possibility of drawing two

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inconsistent conclusions from the evidence does not preclude an administrative
agency’s findings from being supported by substantial evidence.’” (quoting Lax,
489 F.3d at 1084)).
True, the ALJ must evaluate all relevant evidence “to obtain a
longitudinal picture” of Plaintiff’s functional limitations. Carpenter v. Astrue,
537 F.3d 1264, 1269 (10th Cir. 2008) (citing 20 C.F.R. §§ 404.1520a(c)(1),
416.920a(c)(1)). But that is what the ALJ did here. Along with the August 2017
notation, the ALJ also considered later medical assessments of Plaintiff’s
shaking. He supported his RFC assessment with a medical report from July 1,
2019, finding only a “clumsy right hand” and positive Hoffman’s sign. AR 15,
514. He also noted a July 8, 2019 finding that Plaintiff’s “finger to nose
coordination was intact bilaterally.” Id. at 16, 424. The ALJ was “entitled to
resolve such evidentiary conflicts and did so.” Allman v. Colvin, 813 F.3d 1326,
1333 (10th Cir. 2016). The ALJ’s RFC assessment is therefore supported by
substantial evidence as it relates to Plaintiff’s shaking and tremors.
Similarly, Plaintiff notes a February 2019 examination where her gait
was found to be “ataxic and unsteady.” Doc. 20, at 5; AR 431. However, the ALJ
based his decision on several other medical findings related to Plaintiff’s gait.
E.g., AR 16, 424 (January 8, 2019 finding that Plaintiff had a “[n]ormal casual

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gait” but an “unsteady tandem gait”). And the ALJ ultimately rejected the state
agency physician’s opinion that Plaintiff could perform an eroded range of light
work, assigning Plaintiff instead to the less-ambulatory category of sedentary
work due to her “combination of multiple sclerosis and obesity.” AR 17; see also
20 C.F.R. §§ 404.1567, 416.967 (defining sedentary work and light work, which
“requires a good deal of walking or standing”). 3
Relatedly, Plaintiff claims the ALJ “did not properly evaluate [her]
balancing, walking, and standing limitations.” Doc. 20, at 5. The ALJ found
Plaintiff “capable of . . . standing and/or walking at least 2 hours in an 8-hour
workday, and sitting for at least 6 hours in an 8-hour workday.” AR 17.
Plaintiff argues medical findings that she had a “normal casual gait” are
insufficient to support this conclusion. Doc. 20, at 6-7. The Court disagrees. See
Gray v. Apfel, 139 F.3d 911 (10th Cir. 1998) (ALJ’s conclusion claimant could

Plaintiff argues the ALJ’s hypothetical question to the vocational
witness did not adequately account for her manipulative limitations because
Plaintiff disagrees that she can perform the jobs provided by the expert based
on that hypothetical. Doc. 20, at 5. The ALJ did not have to include any manual
manipulative limitations that he concluded did not apply to Plaintiff’s RFC.
See Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016) (“The [ALJ] had to
ask only about the effect of those limitations ultimately assessed; the judge did
not need to ask about the effect of limitations that he didn’t believe applied.”).
And, as explained, the Court finds the ALJ’s assessment supported by
substantial evidence.

3

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perform sedentary work, which calls for walking up to two hours in a workday,
was supported by substantial evidence where ALJ considered, among other
medical findings, “that claimant had no joint deformities, had a normal gait
and did not need any device to walk.”).
Plaintiff also argues the ALJ ignored evidence of Plaintiff’s limp and poor
balance, objectively supported by spinal cord signal abnormalities, which cause
“significant back pain.” Doc. 20, at 6. But “[t]he ALJ need only consider the
resultant functional limitations arising from [Plaintiff’s] conditions, if any, to
formulate [the] RFC.” Corber v. Massanari, 20 F. App’x 816, 822 (10th Cir.
2001); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (defining RFC). The
ALJ noted a December 2018 examination revealing Plaintiff’s “normal range
of motion, strength, and tone,” if “slow and clumsy” “rapid alternating
movements.” AR 17. The ALJ also noted Plaintiff’s attestation to a physician
in February 2017 that “[s]he is able to walk a mile and a half.” Id. at 17, 479.
And the ALJ did not Plaintiff’s balance-related limitations. The ALJ
referenced Plaintiff’s poor midline balance as “clear[ ] support for a more
significant restriction on standing walking as well as lifting and carrying” than
what the state agency physician had recommended. Id. at 17. He also noted a
December 2018 examination revealing Plaintiff’s “normal range of motion,

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strength, and tone,” if “slow and clumsy” “rapid alternating movements.” AR
17. As with Plaintiff’s shaking and tremors, the ALJ was “entitled to resolve
such evidentiary conflicts and did so.” Allman, 813 F.3d at 1333.
Substantial evidence supports the ALJ’s RFC assessment.
2.

Plaintiff’s mental limitations.

Plaintiff starts by asserting she cannot perform one of the three jobs “the
ALJ assigned to her because” it requires level-three reasoning. Doc. 20, at 7. 4
As the Commissioner points out, Plaintiff’s inability to work as a Document
Preparer is immaterial because the other two jobs assigned to Plaintiff call for
a reasoning level of two, and Plaintiff does not dispute her ability to perform
them. See DICOT 726.685-066, 1991 WL 679631, “Semiconductor Bonder”;
DICOT 726.684-110, 1991 WL 679616, “Touch-Up Screener.” The ALJ found
58,000 of those level-two reasoning jobs exist in the national economy, based
on the vocational witness’s testimony. AR 18, 58-59; see Lynn v. Colvin, 637 F.
App’x 495, 499 (10th Cir. 2016) (24,900 jobs nationally is sufficient); Rogers v.
Astrue, 312 F. App’x 138, 141 (10th Cir. 2009) (11,000 jobs nationally is
sufficient). Any error related to the Document Preparer job is harmless.

Plaintiff’s initial claims mentioned no mental impairment, and her June
2019 function report mentioned no mental limitations. AR 238, 274.

4

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Plaintiff next argues “the ALJ did not properly analyze the medical
evidence of record” as to her mental limitations. Doc. 20, at 8. Plaintiff claims
the ALJ failed to adequately analyze her ability to understand, remember, and
apply information. Id. She also claims the ALJ did not adequately analyze
Plaintiff’s ability to interact with others, so his conclusion that she could work
with supervisors and coworkers, but not the public, lacks sufficient support.
Id. at 9. Finally, Plaintiff argues the ALJ did not assess her ability to adapt or
manage herself. Id. at 11. The Court disagrees. 5
The state agency psychological consultant Dr. Lisa Swisher, Ph.D.,
assessed Plaintiff with “moderate” limitations in all of these areas. AR 101-02,
119-20. Dr. Swisher found Plaintiff able to “understand, recall and perform
simple tasks (1-2 steps)”; “focus for two hour periods with routine breaks and
pace and persist for [an] 8 hour work day and [a] 40 hour work week despite
psychological symptoms”; “interact appropriately with coworkers and
supervisors to learn tasks, accept criticism and attend meetings”; and “tolerate

To the extent Plaintiff argues the ALJ erred at step two, where the ALJ
determines whether a claimant has a medically severe impairment, Wall, 561
F.3d at 1052, any such error was harmless. Carpenter v. Astrue, 537 F.3d 1264,
1266 (10th Cir. 2008) (“[A]ny error [at step two] became harmless when the
ALJ reached the proper conclusion that [the plaintiff] could not be denied
benefits conclusively at step two and proceeded to the next step of the
evaluation sequence.”).

5

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working in presence of the public when frequent conversation or
communication is not needed.” Id. at 108, 126. The ALJ found these
recommendations unpersuasive and rejected them. Id. at 17. The ALJ instead
found Plaintiff’s “mildly slow mental processing” further limits her to
“performing simple, repetitive tasks with occasional interaction with
supervisors or co-workers, but no work with the public.” Id. at 17, 685.
The Court understands how the ALJ arrived at the stated limitations
based on a medical finding of “mildly slow mental processing” and sees no
error. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)
(“Where, as here, we can follow the adjudicator’s reasoning in conducting our
review, and can determine that correct legal standards have been applied,
merely technical omissions in the ALJ’s reasoning do not dictate reversal. In
conducting our review, we should, indeed must, exercise common sense. . . .
[W]e cannot insist on technical perfection.”).
Plaintiff next claims the ALJ did not adequately consider the opinion of
Dr. Swisher. Doc. 20, at 11-12. The ALJ expressly acknowledged Dr. Swisher’s
findings but did not have to adopt any of them. 20 C.F.R. §§ 404.1513a(b)(1),
416.913a(b)(1). In fact, the ALJ found that Plaintiff needed greater restrictions

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related to interaction with coworkers and supervisors and that she could not
work with the public at all. AR 13. The Court finds no error.
Finally, Plaintiff claims the ALJ failed to fairly develop the record
because he did not call for a consultative examination. Doc. 20, at 12-13. The
ALJ has “broad latitude in ordering a consultative examination.” Diaz v. Sec’y
of Health & Hum. Servs., 898 F.2d 774, 778 (10th Cir. 1990). The ALJ may do
so “to try to resolve an inconsistency in the evidence, or when the evidence as
a whole is insufficient to allow us to make a determination or decision on [the]
claim.” 20 C.F.R. §§ 404.1519a(b), 416.919a(b). But “if the claimant’s attorney
does not request a consultative examination, the ALJ has no duty to order one
unless the need ‘is clearly established in the record.’” Jazvin v. Colvin, 659 F.
App’x 487, 489 (10th Cir. 2016) (quoting Hawkins v. Chater, 113 F.3d 1162,
1168 (10th Cir. 1997)). Plaintiff’s counsel made no such request before the ALJ.
And although Plaintiff tries to manufacture an inconsistency in the medical
evidence, the purported inconsistency is largely attributed to her discredited
subjective complaints. See Doc. 20, at 12 (listing subjective symptoms Plaintiff
would have the ALJ address more expressly). In crafting the RFC, the ALJ
narrated the progression of Plaintiff’s MS-related symptoms and her subjective
complaints, supra § III, and the Court is convinced of the sufficiency of the

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evidence before him. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (“Situations
that may require a consultative examination.”).
Substantial evidence supports the ALJ’s assessment of Plaintiff’s mental
limitations.
B.

The ALJ properly evaluated the consistency of Plaintiff’s
testimony with the medical evidence of record.

Plaintiff claims the ALJ failed to properly assess the consistency of
Plaintiff’s complaints with the evidence of record under Soc. Sec. Rul. 16-3p,
arguing that “[b]ecause of his other errors, he could not have properly
considered consistency and credibility.” Doc. 20, at 13; see SSR 16-3p, 2017 WL
5180304 (Oct. 25, 2017). The Court, having found no error above as Plaintiff
urges, likewise finds no error in the ALJ’s consistency determination.
The ALJ’s credibility analysis is otherwise termed the consistency
analysis. See SSR 16-3p, 2017 WL 5180304, at *2 (explaining use of the term
“credibility” to “clarify that subjective symptom evaluation is not an
examination of [a claimant’s] character.”). “Credibility is the province of the
ALJ.” Hamilton v. Sec’y of Health & Hum. Servs. of U.S., 961 F.2d 1495, 1499
(10th Cir. 1992). An “ALJ’s credibility findings warrant particular deference”
thanks to the ALJ’s “institutional advantage”: he can “observe the demeanor
and gauge the physical abilities of the claimant in a direct and unmediated
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fashion.” White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). “Findings 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) (footnote omitted). But this requirement is satisfied
without “a formalistic factor-by-factor recitation of the evidence.” Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Here, the ALJ considered the Third Party Adult Function Report
submitted by Plaintiff’s sister-in-law but did not “find this report overly
persuasive as it appears significantly inconsistent with the objective [medical
evidence].” AR 15, 261-68. The ALJ also found “claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in the
record.” Id. at 14. The ALJ then detailed the objective medical evidence he
found to be inconsistent with Plaintiff’s testimony—and why. The Court finds
the ALJ’s analysis sufficient. See Blea v. Barnhart, 466 F.3d 903, 915 (10th
Cir. 2006) (“[T]he ALJ is not required to make specific written findings of
credibility . . . if ‘the written decision reflects that the ALJ considered the
testimony.’”) (quoting Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996)).
Substantial evidence therefore supports the ALJ’s consistency finding.

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Case 5:20-cv-00969-SM Document 25 Filed 11/18/21 Page 22 of 22

V.

Conclusion.
Based on the above, the Court affirms the Commissioner’s decision.
ENTERED this 18th day of November, 2021.

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