United States District Court, D. Utah, Central Division
REBECCA A. FISHER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.
MEMORANDUM DECISION AND ORDER
SAM SENIOR JUDGE UNITED STATES DISTRICT COURT.
Rebecca A. Fisher filed an application for Social Security
benefits alleging a disability beginning November 5, 2011,
with a date last insured of December 31, 2012. Her
application was denied initially and on reconsideration.
After an administrative hearing, an administrative law judge
(“ALJ”) concluded at step four of the five-part
sequential evaluation process, that Plaintiff was unable to
perform any past relevant work. At step five, the ALJ found
that Ms. Fisher was not disabled for purposes of the Social
Security Act because with her residual functional capacity,
age, education, and work experience, she could perform other
jobs existing in significant numbers in the national
economy. Plaintiff's request for review was
denied by the Appeals Council.
Fisher now seeks judicial review of the decision of the
Commissioner of Social Security denying her claim for
benefits. She contends that the ALJ erred in that: (1) he
failed to consider her severe and non-severe impairments when
determining her residual functional capacity, (2) he failed
to give proper weight to her treating physician, and (3) his
decision was not supported by substantial evidence.
STANDARD OF REVIEW
Court reviews the ALJ's decision only to determine if the
factual findings are supported by substantial evidence and if
he applied the correct legal standards. Goatcher v.
United States Dep't of Health & Human Servs., 52
F.3d 288, 289 (10th Cir. 1995). Substantial
evidence is “more than a mere scintilla, ” and
“means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation marks and citation omitted). The Court
may not re-weigh the evidence or substitute its judgment for
that of the Commissioner. Kelley v. Chater, 62 F.3d
335, 337 (10th Cir. 1995).
Evaluation of Impairments - RFC Determination
found Ms. Fisher's depressive disorder and borderline
intellectual functioning to be sever impairments. However, he
determined that “claimant's degenerative joint
disease (knee), diabetes mellitus, non-displaced
5th metatarsal head fracture, scapulohumeral
fibrositis/impingement, rib fracture, and low back pain
nonsevere.” Tr. 12-13.
Fisher first urges that the ALJ failed to support his
decision with substantial evidence because “[a]lthough
finding several ‘non-severe' physical impairments
at Step 2, the ALJ failed to consider these physical
impairments in combination with the severe mental impairments
when determining Plaintiff's residual functional capacity
(RFC).” Op. Br. at 12. Specifically, she urges that the
ALJ “failed to properly consider her degenerative joint
disease of the knee, non-displaced 5th metacarpal
requiring surgery, osteoarthritis, and impingement arthritis
in the shoulder, gait disturbance, and borderline
intellectual functioning with impaired reading and
writing.” Id. at 13.
is an assessment of what a claimant is still
“functionally capable of doing on a regular and
continuing basis despite [her] impairments: the
claimant's maximum sustained work capability.”
Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988). The ALJ must make specific RFC
findings based on all the relevant evidence in the case
record. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996):SSR 96-8p, 1996 WL 374184, at *5
(July2, 1996). In determining the scope of a claimant's
RFC, an ALJ's assessment will consider all of a
claimant's medically determinable impairments including
her medically determinable impairments that are not severe.
20 C.F.R. § 404.1545.
making his RFC determination, the ALJ stated that he
“considered all symptoms and the extent to which these
symptoms can reasonable be accepted as consistent with the
objective medical evidence and other evidence, based on the
requirements, ” and that he “also considered
opinion evidence in accordance with the requirements”.
Tr. 15. In doing so, he cites the two-step process for
evaluating both physical and mental impairments. Tr. 15.
“Where, as here, the ALJ indicates he has considered
all the evidence our practice is to take the ALJ at his
word.” Wall v. Astrue, 561 F.3d 1048, 1070
(10th Cir. 2009)(alternation and internal
quotation marks omitted). Accordingly, the Court will not
find that the ALJ ignored Ms. Fisher”s non-severe
physical impairments in making his RFC
Court also rejects Ms. Fisher assertion that the ALJ erred
because he did not reasonably consider her subjective
complaints in evaluating her RFC. “‘Credibility
determinations are peculiarly the province of the finder of
fact, and [the 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. Secretary of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)).
In evaluating a claimant's evidence of pain the following
framework is employed: “(1)whether Claimant established
a pain-producing impairment by objective medical evidence;
(2) if so, whether there is a loose nexus between the proven
impairment and the Claimant's subjective allegations of
pain; and (3) if so, whether, considering all the evidence,
both objective and subjective, Claimant's pain is in fact
disabling.” Rose v. Colvin, 634 Fed.Appx. 632,
638 (10Th Cir. 2015) (citation omitted).
found “that the claimant's medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant's statements concerning
the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained
in this decision.” (Tr. 18). That determination is
affirmatively linked to substantial evidence in the record.
See Tr. 12-13, 15-18. See also Ans. Br. at
21-22 (outlining relevant evidence). Because the ALJ set
forth valid reasons for discounting Ms. Fisher's
subjective complaints, the ...