DeAnda v. Astrue

Filing 32

MEMORANDUM DECISION AND ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Evelyn J. Furse on 3/11/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

PAMELA DEANDA,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 1:12-cv-00041-EJF

CAROLYN W. COLVIN,
Commissioner of Social Security,

Magistrate Judge Evelyn J. Furse

Defendant.

Plaintiff Pamela DeAnda asks the Court 1 to reverse and remand the Social Security
Administration’s final agency decision denying her Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act. (Pl.’s Br. 17, ECF No. 30.) The Administrative Law Judge
(“ALJ”) determined that Ms. DeAnda did not qualify for benefits because she “was not under a
disability, as defined in the Social Security Act, at any time from April 1, 2007, the alleged onset
date, through September 30, 2009, the date last insured.” (ECF No. 19, the certified copy of the
transcript of the entire record of the administrative proceedings relating to Ms. DeAnda
(hereafter “Tr. __”) 23.) Having carefully considered the parties’ memoranda and the complete
record in this matter, 2 the Court AFFIRMS the Commissioner’s decision because the ALJ
applied the correct legal standards, and substantial evidence supports the challenged factual
determinations.
1

In accordance with 28 U.S.C. § 636(c)(1) and (3) and Federal Rule of Civil Procedure 73, the
parties have consented to proceed before the undersigned United States Magistrate Judge. (ECF
No. 27.)
2
Pursuant to Civil Rule 7-1(f) of the United States District Court for the District of Utah Rules
of Practice, the Court elects to determine the motion on the basis of written memoranda and finds
oral argument unnecessary. See DUCivR 7-1(f).
1

FACTUAL AND PROCEDURAL HISTORY
Ms. DeAnda, born January 4, 1965 (tr. 97), alleges she suffers from, among other things,
Fibromyalgia, Shingles, Bipolar Disorder, Anxiety Related Disorder, and Degenerative Disc
Disease (Pl.’s Opening Br. 3-4, ECF No. 30), but claimed disability based on the degenerative
disc disease prior to the hearing (tr. 107-108). On October 20, 2008, Ms. DeAnda filed a Title II
application for a period of disability and disability insurance benefits beginning April 1, 2007.
(Tr. 9.) The Social Security Administration denied the claim initially on February 3, 2009, and
again upon reconsideration on April 30, 2009. (Id.) Thereafter, Ms. DeAnda filed a written
request for hearing on May 15, 2009. (Id.) She appeared and testified at a hearing held on
February 24, 2010 in Salt Lake City. (Id.)
Ms. DeAnda worked in a fulltime position as a clerk for the Internal Revenue Service
from 1998-2007. (Tr. 140.) At the hearing, Ms. DeAnda testified she had taken a medical
absence from work since 2008. (Tr. 56.)
Before her alleged disability onset date of April 1, 2007, Ms. DeAnda sought treatment
for various complaints of pain including headache, right foot pain, and lower back pain. (See
e.g. tr. 252-54.) These complaints began in 2005 and 2006. (Id.) Ms. DeAnda first saw Dr.
Bruce Larsen in 2003, and he treated her over time for multiple ailments, including spinal
problems and melanoma. (Tr. 143.) In April 2007, the month of Ms. DeAnda’s alleged
disability onset, she saw Dr. Larsen for complaints of fibromyalgia-type pain and cyst removal.
(Tr. 365.) During this visit, Dr. Larsen noted in his report that Ms. DeAnda had “migratory
chronic pain” and “some drug-seeking tendencies,” having “overused her medication th[at]
month.” (Tr. 366.) On a report from the same visit, Dr. Larsen described Ms. DeAnda as being
“on chronic pain meds” and saying she took extra medication that month because of a

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“‘fibromyalgia’ flare.” (Tr. 365.) Dr. Larsen also noted Ms. DeAnda “may miss 0-4 days per
month because of her fibromyalgia.” (Tr. 370.)
On a number of occasions, Ms. DeAnda asked for pain medication but her physicians
refused to prescribe her such medication or questioned her need for it. In May 2007, Ms.
DeAnda saw a physician for complaints of groin pain. (Tr. 374.) During that visit, Ms. DeAnda
noted that her contract 3 had changed with Dr. Larsen and that, as a result, she could obtain pain
medications. (Tr. 374-375.) Ms. DeAnda returned the next day and saw another doctor, who
noted she could return to work or school the following day. (Tr. 377.) In June 2007, Ms.
DeAnda went to the emergency room complaining of chest pain. (Tr. 249-250.) According to
the treating physician’s report, Ms. DeAnda asked for different pain medication than the doctor
had prescribed and questioned the point of going to the emergency room if they could not give
her any stronger pain medication. (Tr. 250.) The doctor noted he was “personally not
comfortable in prescribing” the medications Ms. DeAnda requested. (Id.) In July 2007, Dr.
Larsen extensively described Ms. DeAnda’s “narcotic-seeking behavior,” remarking that the
behavior “is well-documented, back as far as 4/2005.” (Tr. 380.) Dr. Larsen opined that Ms.
DeAnda complained of pain to other doctors as a result of his “trying to keep her from abusing
controlled substances.” (Id.) Dr. Larsen saw Ms. DeAnda on July 17, 2007 and expressed
concern for her difficult history with prescription drug abuse and even a previous overdose
attempt, noting that “[o]bjective findings for causes of chronic pain have been difficult to
pinpoint, and her pain complaints have been somewhat migratory (pleurisy, back pain, shingles
pain, foot pain, diffuse muscle aches, and groin pain have been recent examples).” (Tr. 384385.) Ms. DeAnda continued to seek pain medication from various physicians, including Dr.
3

The record indicates Ms. DeAnda has a “Narcotic contract with BDL [Dr. Larsen]” and that she
may only obtain narcotics from Dr. Larsen. (Tr. 375.)
3

Sutherland, in August 2007, who did not want to take on her chronic pain management and
explained to her that “chronic narcotics have no place in the treatment of the fibromyalgia and
other options need to be recommended and/or [t]ried.” (Tr. 424.)
After Ms. DeAnda applied for disability, the Disability Determination Unit referred her to
Dr. Richard Grow, Ed.D., for a Psychological Evaluation. (Tr. 530.) During the subsequent
examination, Dr. Grow found Ms. DeAnda had reasonably logical thoughts, reasonably intact
recent and remote memory, and that her mood, “if accurately described, is Bipolar II in nature.”
(Tr. 533-534.) Dr. Grow further concluded that Ms. DeAnda could understand, remember, and
carry out simple three step instructions, and noted she got along reasonably well with other
people. (Tr. 536-37.) However, he warned that under work stress, Ms. DeAnda would become
irritable, cry, and want to leave. (Tr. 537.)
At her hearing before the ALJ, Ms. DeAnda testified to many limitations she suffers as a
result of her pain. (Tr. 28-58.) However, the ALJ found Ms. DeAnda’s testimony as to her pain
and resultant limitations lacked credibility due largely to her drug-seeking tendencies. (Tr. 1621.)
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of a final decision of the Commissioner
of the Social Security Administration (“SSA”). The Court reviews the Commissioner’s decision
to determine whether the record as a whole contains substantial evidence in support of the
Commissioner’s factual findings and whether the SSA applied the correct legal standards. 42
U.S.C. §405(g) (2010); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The
Commissioner’s findings shall stand if supported by substantial evidence. 42 U.S.C. § 405(g).

4

Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotations
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted). The court will “review only the
sufficiency of the evidence.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis
in original). The court does not have to accept the Commissioner’s findings mechanically, but
“examine the record as a whole, including whatever in the record fairly detracts from the weight
of the [Commissioner’s] decision and, on that basis, determine if the substantiality of the
evidence test has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal
quotation marks and citation omitted). “‘The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and the court may not “displace the agenc[y’s] choice between two fairly

5

conflicting views, even though the court would justifiably have made a different choice had the
matter been before it de novo.’” Lax, 489 F.3d at 1084 (quoting Zoltanksi v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
FIVE-STEP DISABILITY DETERMINATION
The Social Security Act (“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). Moreover,
the Act considers an individual disabled “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 which exists in the national economy.” Id. § 423(d)(2)(A).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-part sequential evaluation. See 20 C.F.R. § 404.1520; Williams v.
Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
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(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. § 404.1520. The claimant has the initial burden of establishing the disability in the
first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
shifts to the Commissioner to show that the claimant retains the ability to perform other work
existing in the national economy. Id.
ANALYSIS
In this case, the ALJ applied the five-step sequential disability evaluation and made the
following findings of fact and conclusions of law with respect to Ms. DeAnda:
1. Ms. DeAnda “last met the insured status requirements of the Social
Security Act on September 30, 2009.” (Tr. 11.)
2. She “did not engage in substantial gainful activity during the entire period
from her alleged onset date of April 1, 2007 through her date last insured
of September 30, 2010.” 4 (Id.)
3. “Through the date last insured, [Ms. DeAnda] had the following severe
impairments: fibromyalgia; degenerative disc disease; osteoarthritis of the
left upper extremity; and affective disorders.” (Id.)
4. “Through the date last insured, [Ms. DeAnda] did not have an impairment
or combination of impairments that met or medically equaled one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Id.)
5. “[S]ince the alleged onset date and through the date last insured, [Ms.
DeAnda] had the residual functional capacity to perform the full range of
sedentary work as defined in 20 CFR 404.1567(a) except that such work
could not require:
• Lifting more than 8.5 pounds at a time ‘less than occasionally’;
• Lifting and carrying lighter articles weighing more than 3-5
pounds occasionally, which means from very little up to 1/3rd of
the day;
• Standing or walking more than 15 minutes at one time, nor more
than 2 total hours in an 8-hour day;
• Sitting more than 15 minutes at a time, nor more than 6 total hours
in an 8-hour day;

4

The year 2010 is a typographical error with no bearing on the appeal. (Pl.’s Br. 5 n. 3, ECF No.
30.)
7

•

Note: as noted above, regarding standing/walking and sitting, to be
as comfortable as possible, the claimant requires the option to
make brief postural changes every 15 minutes as needed;
• Bending, stooping, twisting, or squatting on more than a ‘less than
occasional’ basis;
• Work on the floor (e.g. kneeling, crawling, or crouching) on more
than a ‘less than occasional’ basis and no climbing of flights of
stairs (a few steps up or down not precluded);
• Overhead lifting or overhead reaching on more than a ‘less than
occasional’ basis and no more than frequent reaching, handling, or
fingering;
• Work at more than a low stress level, which means:
o A low production level (where SGA jobs are classified as
low, average, and high production);
o Working essentially alone (e.g. no working with the general
public);
• Work at more than a low concentration level, which means the
ability to be alert and attentive to (and to adequately perform) only
unskilled work tasks;
• Work at more than a low memory level, which means:
o The ability to understand, remember, and carry out only
simple work instructions;
o The ability to remember and deal with only minimal
changes in work instructions from week to week; and
o The ability to remember and use appropriate judgment in
making only simple work-related decisions.” (Tr. 13.)
6. “Through the date last insured, [Ms. DeAnda] was unable to perform any
past relevant work.” (Tr. 21.)
7. Ms. DeAnda “was born on January 4, 1965 and was 44 years old, which is
defined as a younger individual age 18-44, on the date last insured.” (Id.)
8. Ms. DeAnda “has at least a high school education and is able to
communicate in English.” (Id.)
9. “Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that [Ms. DeAnda] is ‘not disabled,’ whether or not
[she] has transferable job skills.” (Id.)
10. “Through the date last insured, considering [Ms. DeAnda’s] age,
education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that [she]
could have performed.” (Tr. 22.)
11. Ms. DeAnda “was not under a disability, as defined in the Social Security
Act, at any time from April 1, 2007, the alleged onset date, through
September 30, 2009, the date last insured.” (Tr. 23.)

8

In short, the ALJ found Ms. DeAnda had not engaged in substantial gainful activity since
her alleged onset date because she had several severe impairments. (Tr. 11.) However, despite
those impairments, Ms. DeAnda could still perform sedentary work and therefore did not qualify
for DIB. (Tr. 13.) Ms. DeAnda challenges the ALJ’s determination on four grounds.
I. Analysis of Ms. DeAnda’s Impairments at Step Three
Ms. DeAnda makes numerous claims of error in the ALJ’s performance of step three of
the sequential evaluation process. Step three asks whether any “medically severe impairment,”
alone or in combination with other impairments, equals any of a number of listed impairments in
such severity so as to preclude “substantial gainful employment.” 20 C.F.R. §§ 404.1525404.1526 & pt. 404, subpt. P, App. 1. If listed, or equivalent to a listed impairment, the ALJ
presumes the impairment conclusively disabling. See id. § 404.1520(d). If unlisted, the claimant
must establish at step four that her impairment prevents her from performing work she has
previously performed. See id. § 404.1520(e), (f).
First, Ms. DeAnda argues the ALJ erred at step three by finding that she did not have an
impairment or combination of impairments that met or medically equaled one of the impairments
listed under 20 C.F.R. Part 404. (Pl.’s Opening Br. 10, ECF No. 30.) Ms. DeAnda contends that
her condition would meet or equal the listings for lower back pain, for skin disorders, or for
anxiety-related disorders. (Id. at 11-12.) Specifically, Ms. DeAnda argues that her degenerative
disc disease satisfies listing 1.04 and that her shingles nearly meets listings 8.04 and 8.05. (Id. at
11.)
Initially, the ALJ determined Ms. DeAnda does not meet any orthopedic listing under
section 1.00 in 20 C.F.R. Part 404, Subpart P, Appendix 1 because “[t]here is no listing for
fibromyalgia and there is no evidence of nerve impingement for the spinal disorder and the

9

shoulder does not significantly limit the claimant’s function of the left upper extremity.” (Tr.
11.) Despite Ms. DeAnda’s argument that her condition met listing 1.04, the ALJ explained in a
subsequent portion of the Decision that all radiological evidence failed to show “any significant
nerve involvement” and that, on the whole, Ms. DeAnda’s “clinical findings are totally
inconsistent and therefore do not provide corroboration for significant spinal pathology.” (Tr.
17.) The Court finds that substantial evidence supports the ALJ’s finding with respect to
Listings under section 1.00.
The ALJ also determined Ms. DeAnda’s mental impairment did not meet the 12.04
listing. (Tr. 12.) Ms. DeAnda notes that the ALJ analyzed her impairments under 12.04 but that
he had determined she had severe mental impairments of Anxiety Related Disorder and Bi-Polar
Disorder. (Pl.’s Opening Br. 12, ECF No. 30.) She does not challenge his 12.04 analysis but
implies that the ALJ should have undertaken a 12.06 analysis instead of a 12.04 analysis. (Id.)
Regardless of whether the ALJ classified Ms. DeAnda’s mental impairments as affective or
anxiety related, the record makes clear he fully considered the alleged impacts of the mental
impairments on Ms. DeAnda’s daily life. (See tr. 12.) When considering 12.04, paragraph B
requires the same analysis of impacts on the claimant’s life experience as 12.06 requires, namely
at least two of the following: marked restriction of activities of daily living, marked difficulties
maintaining social functioning, marked difficulties maintaining concentration, persistence, or
pace, and repeated episodes of decompensation, each of extended duration. Listing 12.06, like
listing 12.04, alternatively requires a claimant meet the paragraph C description, namely that her
mental impairment results in “complete inability to function independently outside the area of
[her] home.” 20 C.F.R. § 404, subpt. P, App. 1. In his discussion of listing 12.04, the ALJ
referred to Ms. DeAnda’s “mental impairment” broadly, implying he did consider her anxiety

10

related disorder and bi-polar as her collective mental impairments. (Tr. 12.) Because the
paragraph B and C analysis is identical under listings 12.04 and 12.06, because Ms. DeAnda’s
assertions about the impact of the impairments on her life do not change depending on how the
ALJ categorizes them, and because the ALJ conclusively found Ms. DeAnda’s mental
impairments did not meet either paragraph’s requirements, the Court disagrees with Ms.
DeAnda’s implication that the ALJ failed to analyze her Anxiety Related Disorder or that any
such error caused any harm.
Finally, Ms. DeAnda urges the Court to consider her disability under listings 8.04 or 8.05
and criticizes the ALJ’s failure to make factual determinations about these listings based upon
her shingles. (Pl.’s Opening Br. 11, ECF No. 30.) However, Ms. DeAnda did not claim her
shingles met a listing at the time of the ALJ’s decision. (See tr. 107-108.) As such, the ALJ’s
failure to analyze the shingles does not constitute error. Even if the ALJ had analyzed the
shingles, Ms. DeAnda’s own testimony disposes of the argument that she meets any of the 8.00
listings. Discussing this impairment, Ms. DeAnda recognizes that her shingles “would meet a
listing under 8.04 or 8.05 if [she] continued to suffer extensive rashes despite treatment for 3
months.” (Id.) She then argues that treating physician Elena Goncharova’s notes do not
distinguish between fibromyalgia and shingles in the description of her pain management and
treatment extending from September 2007 to October 2008. (Id.) However, Ms. DeAnda’s own
testimony belies this argument: Ms. DeAnda accurately describes the 8.00 listings, but explained
at her hearing that she experiences the shingles about one time per month for up to seven days at
a time, not for three consistent months. (Tr. 36.) The 8.02-8.06 listings for skin disorder
categories all require “skin lesions that persist for at least 3 months despite continuing treatment
as prescribed.” 20 C.F.R. § 404 subpt. P, App. 1. Because Ms. DeAnda herself testified that her

11

shingles did not persist for three consistent months, the ALJ could not have found she met any of
the 8.00 listings.
This Court finds that substantial evidence in the record supports the ALJ’s finding that
Ms. DeAnda does not meet or equal any of the Appendix 1 listings.
II. Evaluation of Treating Physician Opinion Evidence
Next Ms. DeAnda argues the ALJ failed to evaluate the opinions of treating medical
sources properly, specifically claiming the ALJ erred by failing to give controlling weight to her
treating physicians, doctors Sharman Sutherland, Bruce Larsen, and Gary Devries. (Pl.’s
Opening Br. 12, ECF No. 30.) This argument misstates the standard by which an ALJ evaluates
treating physician evidence.
An ALJ must evaluate every medical opinion. 20 C.F.R. § 404.1527(c). A treating
physician’s opinion may merit controlling weight if the ALJ finds it “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [] not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). When the ALJ
does not give a treating physician’s opinion controlling weight, the ALJ must consider certain
factors. 20 C.F.R. § 404.1527(c) provides these factors:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
See Watkins v. Barnhart, 350 F.3d 1297, 1300–01 (10th Cir. 2003) (citation omitted). To reject a
medical opinion, the ALJ must provide “specific, legitimate reasons” for doing so.

12

Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quoting Miller v. Chater, 99 F.3d 972, 976
(10th Cir. 1996)).
Yet the ALJ’s decision need not discuss explicitly all of the factors for each of the
medical opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a
lack of discussion of each factor does not prevent the court from according the decision
meaningful review). When considering medical opinion evidence, the ALJ must weigh and
resolve evidentiary conflicts and inconsistencies. See Richardson v. Perales, 402 U.S. 389, 399
(1971) (reflecting the ALJ’s duty to resolve conflicting medical evidence). In addition, an ALJ’s
decision “must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” SSR
96-2p, *5, 1996 WL 374188 (July 2, 1996).
While the ALJ did not ascribe specific weight to each doctor’s opinion by name, he did
discuss their findings at length and then concluded that “[i]t is difficult to give significant weight
to these findings.” (Tr. 20.) He first reasoned that Ms. DeAnda herself lacked credibility
because “the well documented medical records [demonstrate] that the claimant understands how
to communicate with doctors to get what she wants.” (Id.) The ALJ also refused to give
significant weight to findings that Ms. DeAnda had to miss up to 4 days of work per month or
that she could not sit, stand, or walk more than two hours per workday because these assessments
“relie[d] on the statements and representations of the claimant, which [he did] not find to be
reliable.” (Id.) The ALJ cited at least six different parts of the record of Ms. DeAnda’s medical
providers as the basis of his finding that “[h]er drug seeking behavior is very obvious on reading
the records of her constantly shifting sources of complaints of pain and rotating excuses for using
more than the amount of prescribed pain medications.” (Tr. 16.) Credibility determinations, as

13

further discussed below, remain the province of the ALJ, and the Court will not overturn them if
substantial evidence supports the determinations. See Hackett v. Barnhart, 395 F. 3d 1168, 1173
(10th Cir. 2005). Here, the ALJ cites to medical findings throughout the record to determine Ms.
DeAnda lacks credibility and appropriately gives limited weight to doctors’ opinions derived
from her non-credible subjective claims.
This Court thus rejects Ms. DeAnda’s argument that the ALJ failed to give appropriate
weight to the medical opinions in the record.
III. Rejection of Ms. DeAnda’s Subjective Pain Complaints
Ms. DeAnda argues the ALJ failed to include all impairing conditions, particularly her
pain, and that he failed to undertake the analysis that SSR 96-4p 1996 WL 374187 (July 2, 1996)
requires when a claimant alleges pain as a disabling factor. (Pl.’s Opening Br. 16, ECF No. 30.)
SSR 96-4p, *2, provides, in relevant part, that an individual’s symptoms such as pain “will not
be found to affect the individual’s ability to do basic work activities…unless medical signs and
laboratory findings show that there is a medically determinable physical or mental impairment(s)
that could reasonably be expected to produce the symptom(s) alleged.”
“‘Credibility determinations are peculiarly the province of the finder of fact, and [a court]
will not upset such determinations when supported by substantial evidence.’” Kepler v. Chater,
68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec’y of Health & Human Servs., 898 F.2d
774, 777 (10th Cir.1990)). “However, ‘[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.’”
Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)). If objective medical
evidence shows a medical impairment that produces pain, the ALJ must consider the claimant’s
assertions of severe pain and decide the extent to which the ALJ believes the claimant’s

14

assertions. Id. (citation omitted). But this analysis “does not require a formalistic factor-byfactor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on
in evaluating the claimant’s credibility, the dictates of Kepler are satisfied.” Qualls v. Apfel, 206
F.3d 1368, 1372 (10th Cir. 2000).
In this case, the ALJ examined Ms. DeAnda’s credibility and pain complaints in detail,
referring back to her various doctors’ evaluations and opinions. (Tr. 13–21.) The ALJ found
that Ms. DeAnda had medically determinable impairments that one would reasonably expect to
cause pain. (Tr. 16.) However, the ALJ did not find Ms. DeAnda’s assertions regarding the
limiting effects of the pain concerning intensity and persistence credible. (Id.) The ALJ
examined the record for any objective medical evidence to support the complaint and provided
specific reasons for the credibility accorded Ms. DeAnda’s pain complaints, as discussed at
length above. (Id.) In his findings, the ALJ explained that “whenever statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case record.” (Tr. 14.) The
ALJ criticized Ms. DeAnda’s myriad pain triggers, noting that “[a]pparently any kind of external
condition increases her pain” and also that her “complaints of pain have been consistent, but not
in location or cause.” (Tr. 17.)
Ultimately, the ALJ continued that “[w]ith the variety of complaints and the pattern of
complaints it is difficult to tell if she is requesting medication for the pain or complaining of pain
to get the medications. The overall record suggests strongly the latter is the case.” (Tr. 18.) As
a result, and in consideration of the multiple citations to medical opinions on the record as
discussed above, the ALJ did “not give significant weight to the objective evidence of

15

degenerative disease of the spine, fibromyalgia, or any other possible cause of pain.” (Id.) The
ALJ further explained that he did “not find the claimant’s complaints and allegations of pain or
mental symptoms or any related functional limitations to be reliable, and they [were] weighted
accordingly.” (Tr. 19.)
Because the ALJ set forth specific evidence to support his determination of Ms.
DeAnda’s lack of credibility, this Court finds no error in the ALJ’s rejection of her subjective
complaints as to pain. See Qualls, 206 F.3d at 1372.
IV. Step Five Analysis: Jobs in the National or Regional Economy
Finally, Ms. DeAnda argues the ALJ erred in his Step Five finding Ms. DeAnda not
disabled because she could perform other work existing in significant numbers in the national
economy. (Pl.’s Opening Br. 7, ECF No. 30.)
At step five of the sequential evaluation process, the ALJ determines whether the
claimant can perform other work existing in significant numbers in the national economy. 20
C.F.R. § 404.1520(a)(4)(v). The ALJ may determine that a sufficient number of jobs exist by
relying on the testimony of a vocational expert, 20 C.F.R. § 404.1566(e), or by relying on the
Medical Vocational Guidelines, 20 C.F.R. § 404.1655(d), among other things. The ALJ will
consider a claimant disabled if she cannot perform her past work or other work in the national
economy. 20 C.F.R. § 404.1505(a).
“Identified jobs must be shown to exist in ‘significant numbers’ in the regional or
national economies. 42 U.S.C. § 423(d)(2)(A).” Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). In Trimiar v. Sullivan, the appellant raised an issue that “require[d] th[e] Court to
address what constitutes a ‘significant number’ for purposes of the statute.” Trimiar v. Sullivan,
966 F.2d 1326, 1330 (10th Cir. 1992). The Court refused to draw a bright line as to what

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number of jobs constitutes a “significant number” on the basis that “each case should be
evaluated on its individual merits.” Id. The Court did, however, note several factors that enter a
proper evaluation of what amounts to “significant” numbers, as enumerated by the Eighth Circuit
to include: “the level of claimant’s disability; the reliability of the vocational expert’s testimony;
the distance claimant is capable of travelling to engage in the assigned work; the isolated nature
of the jobs; the types and availability of such work, and so on.” Id. (citing Jenkins v. Bowen,
861 F.2d 1083, 1087 (8th Cir.1988) (quoting Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.1988)).
“The decision should ultimately be left to the [ALJ's] common sense in weighing the statutory
language as applied to a particular claimant's factual situation.” Id. (citation omitted).
In this case, at Step Five the ALJ noted that although Medical-Vocational Rule 201.28
would otherwise direct a finding of “not disabled” on the basis of Ms. DeAnda’s having the
residual functional capacity to perform the full range of sedentary work, she had additional
limitations on her abilities. (Tr. 22.) For this reason, the ALJ questioned the vocational expert
“[t]o determine the extent to which these limitations erode the unskilled sedentary occupational
base” of jobs Ms. DeAnda could perform. (Id.) The vocational expert then testified that 20,000,
7,000, and 6,000 jobs existed in the national economy for nut sorter, level vial sealer, and clock
mounter, respectively. (Id.) The vocational expert testified that 1.5% of these jobs would exist
in the local economy. (Id.) Ms. DeAnda points out that that percentage would result in up to
495 jobs in the local economy. (Pl.’s Opening Br. 8, ECF No. 30.) As discussed, Trimiar did
not announce a bright line rule for what constitutes a “significant number” of jobs. Rather, it
announced a guideline for the factors an ALJ must consider in making his determination as to
whether a significant number of jobs exist.

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Ms. DeAnda asserts the ALJ did not address any of the criteria Trimiar sets forth. In so
arguing, Ms. DeAnda misunderstands that court’s holding. The analysis in Trimiar makes plain
that an ALJ need not explicitly discuss those factors—rather, the record must reflect that these
factors entered into the ALJ’s calculus in determining whether jobs existed in significant
numbers. Trimiar, 966 F. 2d at 1331-1332. Review of the ALJ’s decision reveals he did
consider at least the level of Ms. DeAnda’s disability (tr. 13-21), the reliability of the vocational
expert’s testimony (tr. 22), and the types and availability of such work (tr. 22-23). The ALJ
notably also found Ms. DeAnda had only “mild” limitations in her ability to get around by
herself, which relates to another of the Trimiar factor (the distance one must travel to reach the
job). (Tr. 12.) These factors all played a part in the ALJ’s determination.
As a result, the Court finds substantial evidence supports the ALJ’s finding Ms. DeAnda
not disabled at Step Five because a significant number of jobs existed in the national or local
economy that Ms. DeAnda could perform.
CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the Commissioner.

DATED this 11th day of March, 2014.
BY THE COURT:
____________________________________
Evelyn J. Furse
United States Magistrate Judge

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