Vigil v. Social Security Administration , 623 F. App'x 936 ( 2015 )


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  •                                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                          August 18, 2015
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    ANITA LOUISE VIGIL,
    Plaintiff - Appellant,
    v.                                                          No. 15-2007
    (D.C. No. 1:13-CV-00905-GBW)
    CAROLYN W. COLVIN, Acting                                    (D. N.M.)
    Commissioner of Social Security
    Administration,
    Defendant - Appellee.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
    _________________________________
    Anita Louise Vigil appeals the district court’s order denying her motion to
    remand to the Commissioner to reconsider the denial of her application for disability
    benefits. We have jurisdiction under 
    28 U.S.C. § 1291
     and 
    42 U.S.C. § 405
    (g), and
    we affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    submitted without oral argument. This order and judgment is not binding precedent,
    except under the doctrines of law of the case, res judicata, and collateral estoppel. It
    may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
    and 10th Cir. R. 32.1.
    I.
    In Ms. Vigil’s application for disability insurance benefits, she alleged her
    disability commenced December 26, 2008, when she was 45 years old. The agency
    denied her application initially and on reconsideration. Following a de novo hearing,
    an administrative law judge (ALJ) concluded Ms. Vigil was not disabled.
    In reaching this conclusion, the ALJ conducted a five-step sequential
    evaluation process. See Lax v. Astrue, 
    489 F.3d 1080
    , 1084 (10th Cir. 2007). At step
    one, the ALJ noted Ms. Vigil had not engaged in substantial gainful activity since the
    alleged onset date of her disability. At step two, the ALJ found Ms. Vigil had the
    following severe impairments: “superior and posterior labral tears, and supraspinatus
    tendinopathy of the right shoulder, myofascial cervicalgia, asthma, diabetes, and
    migraine headaches.” Admin. R. at 14. At step three, the ALJ found Ms. Vigil did
    not have an impairment or combination of impairments that met or equaled a listed
    impairment.
    The ALJ then assessed Ms. Vigil’s residual functional capacity (RFC),
    concluding that she could perform light work, with some additional limitations. At
    step four, the ALJ determined Ms. Vigil could not perform her past relevant work as
    a retail supervisor, but the ALJ found at step five that Ms. Vigil was capable of
    performing other available work.
    The Appeals Council denied review of the ALJ’s decision that Ms. Vigil was
    not disabled. On review, the district court upheld the ALJ’s decision, denied
    2
    Ms. Vigil’s motion to remand, and dismissed the case with prejudice. This appeal
    followed.
    II.
    “We review the Commissioner’s decision to determine whether the factual
    findings are supported by substantial evidence in the record and whether the correct
    legal standards were applied.” Doyal v. Barnhart, 
    331 F.3d 758
    , 760 (10th Cir.
    2003). “Substantial evidence is such relevant evidence as a reasonable mind might
    accept as adequate to support a conclusion. It requires more than a scintilla, but less
    than a preponderance.” Lax, 
    489 F.3d at 1084
     (citation and internal quotation marks
    omitted).
    Ms. Vigil argues that “[t]he ALJ failed to adequately consider the effects of
    [her] severe migraines when formulating the RFC finding at step four.” Aplt. Br. at 9.
    “[She] contends that the ALJ’s omission of headache-related limitations in the RFC
    is not supported by substantial evidence.” 
    Id.
    In evaluating the impact of subjective symptoms such as pain or fatigue on a
    claimant’s RFC, the ALJ engages in a two-part process. SSR 96-7p, 
    1996 WL 374186
    , at *2 (July 2, 1996). First, the ALJ must determine whether “there are
    medical signs and laboratory findings demonstrating the existence of a medically
    determinable . . . impairment[] that could reasonably be expected to produce the
    symptoms.” 
    Id. at *1
    . Once the ALJ has determined the existence of a medically
    determinable impairment, she then evaluates the claimant’s credibility concerning
    3
    “the intensity, persistence, and functionally limiting effects of the symptoms . . . .”
    
    Id.
    The ALJ found that Ms. Vigil’s medical impairments “could reasonably be
    expected to cause the alleged symptoms; however, [Ms. Vigil’s] statements
    concerning the intensity, persistence and limiting effects of these symptoms are not
    credible to the extent they are inconsistent with the [RFC finding].” Admin. R. at 18.
    The ALJ assessed Ms. Vigil with an RFC for light work with some additional
    functional and environmental limitations, but did not include any limitations related
    to her headaches. The ALJ acknowledged that Ms. Vigil experiences “some levels of
    pain,” Admin. R. at 21, but ultimately determined that this impacted her ability to
    work only to the extent described in the RFC assessment.
    Ms. Vigil asserts that the ALJ improperly discredited her testimony as to the
    disabling or limiting effects of her headaches “solely based on a lack of clinical or
    diagnostic findings.” Aplt. Br. at 12. The ALJ did note the lack of objective
    evidence to support headaches to the degree or frequency alleged by Ms. Vigil, but
    the ALJ also gave other reasons for her adverse credibility determination that
    Ms. Vigil does not mention in her brief.
    In explaining why she found Ms. Vigil not fully credible, the ALJ noted that
    Ms. Vigil “continued working for years after her initial injury and left her job
    because the store closed rather than because of her disability.” Admin. R. at 21.
    Although there is some disagreement among her physicians, Ms. Vigil and at least
    one of her doctors believes that her headaches and migraines may be associated with
    4
    a shoulder injury she suffered in May 1995. The record reflects that she complained
    of a severe headache as far back as March 2006, and she repeatedly complained of
    headaches and migraines throughout 2008. By Ms. Vigil’s own account, she
    frequently suffered from headache pain before she stopped working, yet she
    continued to work. She testified that she only stopped working because her store
    closed and she lost her job. The ALJ properly concluded that these circumstances
    cast doubt on Ms. Vigil’s credibility. See Cowan v. Astrue, 
    552 F.3d 1182
    , 1191
    (10th Cir. 2008) (noting that a claimant’s ability to work in the past despite his
    impairments suggests his conditions would not currently prevent him from working
    and casts doubt on his credibility).
    The ALJ also noted that Ms. Vigil “collected unemployment benefits and was
    searching for work, while at the same time maintaining that she is unable to work.”
    Admin. R. at 21. Ms. Vigil alleged in her disability application that she became
    disabled as of December 26, 2008—when her store closed and she was laid off from
    her job. She testified, however, that she was looking for jobs while she was receiving
    unemployment benefits, but she was unable to find a job. She estimated that she
    drew unemployment benefits for two years. Yet during this timeframe in 2009 and
    2010, Ms. Vigil continued to complain that she was suffering from painful headaches
    and migraines. The fact that Ms. Vigil actively sought employment while
    maintaining she suffered from disabling pain is a legitimate ground for the ALJ to
    discount her credibility. Cf. Newbold v. Colvin, 
    718 F.3d 1257
    , 1267 (10th Cir.
    5
    2013) (observing that claimant’s interest in returning to work during the period when
    she was allegedly disabled supported ALJ’s adverse credibility finding).
    Finally, the ALJ noted that Ms. Vigil made inconsistent statements about the
    side effects of her medication. She testified at the hearing “that she takes numerous
    prescription medications for neck and shoulder pains, migraine headaches, as well as
    to help her sleep.” Admin. R. at 19. Although the medications provide some relief,
    she said they “make her tired and dizzy ‘loopy’ like, making it difficult to
    concentrate.” 
    Id.
     But as the ALJ correctly noted, the record reflects she told her
    doctors that she did not have any side effects from her medications, see, e.g., 
    id. at 660, 662
    . “One strong indication of the credibility of an individual’s statements is
    their consistency, both internally and with other information in the case record.”
    SSR 96-7p, at *5. The ALJ properly relied on Ms. Vigil’s inconsistent statements
    about the side effects of her medication when making her adverse credibility
    determination.
    “Credibility determinations are peculiarly the province of the finder of fact,
    and we will not upset such determinations when supported by substantial evidence.”
    Hackett v. Barnhart, 
    395 F.3d 1168
    , 1173 (10th Cir. 2005) (internal quotation marks
    omitted). The ALJ based her credibility determination on appropriate considerations
    that are supported with substantial evidence in the record. Accordingly, the ALJ did
    not err in assessing Ms. Vigil’s RFC.
    6
    We affirm the district court’s order denying the motion to remand and
    dismissing the case.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    7
    

Document Info

Docket Number: 15-2007

Citation Numbers: 623 F. App'x 936

Judges: Kelly, Baldock, Gorsuch

Filed Date: 8/18/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024