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Fischer v. Colvin

United States District Court, D. Utah, Central Division

February 2, 2017

CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.




         Plaintiff 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[1], 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.[2] Plaintiff's request for review was denied by the Appeals Council.

         Ms. 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.


         The 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).


         A. Evaluation of Impairments - RFC Determination

         The ALJ 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.

         Ms. 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.

         The RFC 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.

         In 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 assessment.[3]

         The 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).

         The ALJ 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 ...

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