CHARLES B. GOODWIN, Magistrate Judge.
Plaintiff Elizabeth Annette Garcia brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying her applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The parties have consented to the jurisdiction of a United States Magistrate Judge. Doc. Nos. 25, 26. Upon review of the administrative record
Plaintiff protectively filed her application for DIB on December 26, 2009, alleging a disability onset date of August 17, 2009. R. 123-28, 153-55. Following denial of her applications initially and on reconsideration, Plaintiff was granted and attended a hearing before an Administrative Law Judge ("ALJ"). R. 26-57, 58-66, 70-72. The ALJ issued an unfavorable decision on May 14, 2012. R. 10-25. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-5; see also 20 C.F.R. § 404.981. This action for judicial review followed.
The Commissioner uses a five-step sequential evaluation process to determine eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 17, 2009, the alleged onset date. R. 12; see 20 C.F.R. § 404.1571. At step two, the ALJ determined that Plaintiff had the severe impairments of "problems with back, neck, and both hands, fibromyalgia, rheumatoid arthritis, and obesity." R. 12; see 20 C.F.R. § 404.1520(c). At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 18; see 20 C.F.R. § 404.1520(d).
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her impairments. R. 19-23; see 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ found that Plaintiff had the RFC to perform "sedentary work," subject to additional specifications and limitations:
R. 19-20; see 20 C.F.R. § 404.1567(a) (defining "sedentary work"). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work and that transferability of job skills was not material to the determination of disability. R. 23-24; see 20 C.F.R. §§ 404.1565, .1568.
At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. Taking into consideration the testimony of a vocational expert regarding the degree of erosion to Plaintiff's unskilled sedentary occupational base caused by Plaintiff's additional limitations, the ALJ concluded that Plaintiff could perform occupations such as check cashier (DOT 211-462.026), timekeeper (DOT 215-362.022), and sorter (DOT 209-687.022), all of which offer jobs that exist in significant numbers in the national economy. R. 24-25; see 20 C.F.R. § 404.1545(a)(5)(ii). On that basis, the ALJ determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from August 17, 2009, though the date of the decision. R. 25; see 20 C.F.R. § 404.1520(g).
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence that may undercut or detract from the ALJ's findings, to determine if the substantiality test has been met. Wall, 561 F.3d at 1052 (internal quotation marks omitted). While the court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
Plaintiff alleges one claim of error: that because the ALJ "supported her [credibility] determination with misstatements of the record, personal assumptions, and by failing to discuss factors that supported [Plaintiff's] statements," the ALJ's credibility determination was improper. Pl.'s Br., Doc. No. 18, at 9-15. Without foreclosing the possibility that a proper credibility assessment could lead to the same result, the Court determines that the multiple inaccuracies in the credibility assessment actually performed by the ALJ require reversal and remand.
The assessment of a claimant's RFC generally requires the ALJ to make findings regarding the credibility of testimony describing "the intensity, persistence, and functionally limiting effects of . . . symptoms," such as pain and other subjective complaints, that are associated with the claimant's medically determinable impairments. See SSR 96-7p, 1996 WL 347186, at *1 (July 2, 1996); Wilson v. Astrue, 602 F.3d 1136, 1144-45 (10th Cir. 2010). The ALJ is required to closely and affirmatively link her credibility findings to substantial evidence in the record and to include "specific reasons" for such findings. See Wilson, 602 F.3d at 1144; Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); SSR 96-7p, 1996 WL 473186, at *4. "Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence." Wilson, 602 F.3d at 1144 (internal quotation marks omitted). Credibility findings must "be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (internal quotation marks omitted). In addition to objective evidence, the ALJ should consider certain factors in evaluating a claimant's credibility, including:
SSR 96-7p, 1996 WL 374186, at *3; accord 20 C.F.R. § 404.1529(c)(3); Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004).
Here, the ALJ concluded that Plaintiff was "not fully credible," stating that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above [RFC] assessment." R. 21, 22. As support for this conclusion, the ALJ pointed to two primary findings. First, the ALJ stated that, "[Plaintiff] alleged difficulties walking with repeated falls; however there are no emergency room visits or medical records for treatment of falls [and Plaintiff] has not been prescribed an assistive device to help prevent alleged falls." R. 21-22. Second, the ALJ stated that, "Medical records indicated an improvement following carpal tunnel surgeries; however, [Plaintiff] alleges that she is unable to lift and/or carry anything due to hand difficulties. [Plaintiff] testified that she was able to go to the grocery store, requiring her to lift and carry groceries from her car into her home." R. 22. As Plaintiff asserts, however, neither of these findings is supported by substantial evidence.
First, the ALJ cited an absence of emergency room visits or medical records for treatments of falls as evidence discrediting Plaintiff's claim that she has difficulty walking. See R. 21. The record, however, reflects several instances of treatment for falls and numerous instances of reports of falls. The ALJ herself noted that "[o]n September 8, 2010, [Plaintiff] presented for pain relief following a fall." R. 16 (citing Ex. 22F); see R. 722. Further, Plaintiff, some time prior to May 27, 2008, sought treatment for a fall that had resulted in a broken foot. See R. 241-43; cf. R. 417 (Feb. 3, 2010, notation that Scott Shields, DPM, last saw Plaintiff July 11, 2008). Plaintiff additionally, on or around August 16, 2009, sought treatment for a fall that had resulted in a compression fracture of the spine. See R. 361, 364, 373, 395, 400-02, 433, 435, 513, 514, 611, 614, 767, 773, 775; see also R. 14 ("New lumbar spine x-ray on August 19, 2009 noted a new compression fracture at [T12] with roughly 10 to 15% loss of vertebral body height. . . . Bruce Pendleton, M.D. examined the claimant on August 27, 2009 for complaints of neck and low back pain. She also reported pain in her right leg following a fall four days prior."). Further, though Plaintiff may not have presented for treatment, the medical record indicates that Plaintiff reported having fallen during the year prior to July 7, 2009, and also on January 25, 2010 (see R. 414, 450), and other non-medical sources reported falls during the relevant time period (see R. 45, 151, 152, 157, 220, 223, 224).
Second, the ALJ states that "[Plaintiff] alleges that she is unable to lift and/or carry anything due to hand difficulties," indicating that this conflicted with Plaintiff's testimony "that she was able to go to the grocery store, requiring her to lift and carry groceries from her car into her home." R. 22. But, again, the record does not support the ALJ's finding. During the administrative hearing, the ALJ asked Plaintiff about driving:
R. 36. Later in the hearing, the ALJ specifically questioned Plaintiff about grocery shopping:
R. 48.
This testimony does not indicate that Plaintiff regularly, or even necessarily ever, lifted and carried any significant weight of groceries, such as would be inconsistent with Plaintiff's specific testimony regarding pain and restriction in the use of her hands. Moreover, other statements by Plaintiff in the record affirmatively contradict the ALJ's assumption. In her Function Report, Plaintiff reported she needed help buying food—a fact the ALJ seemed to acknowledge by her statement that "[Plaintiff] reported she was unable to . . . purchase household supplies." See R. 21, 184. Plaintiff also reported that she only shopped by phone, mail, or computer, specifying "I don't go shopping." R. 185. The state agency medical consultant also noted, presumably based on a report by Plaintiff, that Plaintiff "does not shop." R. 680.
Following her conclusion as to credibility, the ALJ made two additional statements that could be read as relevant to that assessment. First, the ALJ stated, "[Plaintiff] alleged that she could not work due to her disability; however, her activities of daily living showed she was capable of performing all of her activities within normal limitations indicating that she was not precluded from performing all work." R. 22. Next, the ALJ stated, "[Plaintiff] responded positively to her medications with no sideeffects. Therefore, her medications did not preclude her from work." R. 22.
The first of these statements would not support an adverse credibility assessment because, contrary to the ALJ's suggestion, work-related functional limitations are indicated within the evidence of Plaintiff's activities of daily living. For instance, relevant to Plaintiff's ability to lift and carry, the ALJ herself notes the following:
R. 20-21; see also R. 42, 47, 48, 184. The ALJ does not indicate which, if any, of Plaintiff's activities of daily living would undermine these statements or Plaintiff's other descriptions of pain and symptomology.
Regarding medications, an ALJ may consider, in assessing a claimant's credibility, "[t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms." SSR 96-7p, 1996 WL 374186, at *3. Here, the ALJ appears to state that medications had lessened Plaintiff's pain and symptoms without side effects. R. 22. However, the ALJ's conclusory sentence does not indicate any examples of different levels of pain and symptomology based on differing levels of medication or treatment, and the available evidence suggests that the instances of pain and other symptoms described by Plaintiff occurred while she was being medicated. Without explanation, this conclusion would not support the ALJ's credibility assessment.
In sum, the ALJ's credibility assessment is based on unsupported and erroneous factual findings. The ALJ's finding of no falls when there are records of multiple falls mischaracterizes the evidence. See Sitsler v. Astrue, 410 F. App'x 112, 117-18 (10th Cir. 2011) (noting that the ALJ mischaracterized plaintiff's testimony and stating: "We have criticized this form of selective and misleading evidentiary review, holding [in Sisco v. Dep't of Health & Human Servs., 10 F.3d 739, 743 (10th Cir. 1993)] that an ALJ cannot use mischaracterizations of a claimant's activities to discredit his claims of disabling limitations."). Similarly, the ALJ's finding that Plaintiff had lifted and carried a significant weight of groceries was based on an assumption unsupported by evidence of record. See Winfrey v. Chater, 92 F.3d 1017, 1020-21 (10th Cir. 1996) (holding that finding based on speculation was not supported by substantial evidence). Because neither these nor the other two possibly-cited bases for the ALJ's credibility assessment constitute substantial evidence in support of the ALJ's determination, that determination cannot stand. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (refusing to "defer[] to the ALJ as trier of fact on credibility" when little was "left as `substantial evidence' for the ALJ's determination of noncredibility"); Talbot v. Heckler, 814 F.2d 1456, 1464 (10th Cir. 1987) (finding that ALJ had mischaracterized claimant's reports of activities, leaving only "a mere scintilla" of support that was insufficient to constitute substantial evidence).
Moreover, the ALJ's credibility assessment lacks consideration of the frequent instances in which Plaintiff sought pain relief through medication and other treatment. Plaintiff's medical records include repeated references to Plaintiff's pain, numbness, and weakness. See Exs. 1F, 2F, 3F, 4F, 8F, 9F, 10F, 13F, 15F, 16F, 17F, 18F, 22F, 23F, 24F, 25F, 27F, 28F, 29F, 31F, 32F, 33F, 35F, 37F, 38F passim; but see Ex. 30F (indicating improvement after carpal tunnel surgery).
Defendant argues that the ALJ "reasonably relied on the medical source opinions, the majority of which were inconsistent with Plaintiff's claims of total disability." Def.'s Br. at 10 (citing R. 22-23). It is true that "the consistency or compatibility of nonmedical testimony with objective medical evidence" is an important and legitimate factor to be considered when determining the credibility of subjective complaints of pain and symptoms. See Wilson, 602 F.3d at 1144. But based on the volume of errors and contradictions at issue, the Court cannot confidently say that the ALJ's mistakes are harmless and that the ALJ's reliance on the medical record alone would qualify as substantial evidence for the adverse credibility determination. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (discussing harmless error in social security appeals and holding that such a principle applies only where the court can "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way"); Bakalarski v. Apfel, 1997 WL 748653 at *3 (10th Cir. Dec. 3, 1997) ("Because a credibility assessment requires consideration of all the factors `in combination,' when several of the factors relied upon by the ALJ are found to be unsupported or contradicted by the record, we are precluded from weighing the remaining factors to determine whether they, in themselves, are sufficient to support the credibility determination.") (quoting Huston v. Bowen, 838 F.2d 1125, 1132 n.7 (10th Cir. 1988)).
Accordingly, the Commissioner's decision is reversed and remanded. See Winfrey, 92 F.3d at 1021 (reversing in part because "the ALJ's evaluation of plaintiff's subjective complaints was flawed by his reliance on factors that were not supported by the record and by his failure to consider other factors that were supported by the record"); Sitsler, 410 F. App'x at 118 (reversing because, "[a]lthough we will not upset an ALJ's credibility determination that is closely and affirmatively linked to substantial evidence, here the ALJ's analysis was flawed both by his reliance on mischaracterizations of the evidence and by his failure to consider the uncontroverted evidence of claimant's prescription pain medications"); Phillips v. Colvin, No. CIV-13-61-D, 2014 WL 1689686, at *4 (W.D. Okla. Apr. 29, 2014) (reversing because ALJ's credibility determination was based on mischaracterizations of the record and erroneous factual findings).
Based on the foregoing analysis, the decision of the Commissioner is REVERSED and REMANDED. Judgment will issue accordingly.
IT IS SO ORDERED.
Pl.'s Br. at 14.
