The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CAROL J. B.,
Plaintiff,
v. Case No. 20-cv-534-JFH-JFJ
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
This matter comes before the Court on the Report and Recommendation of United States
Magistrate Judge Jodi F. Jayne (“Magistrate Judge”) on review of a decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying a request for disability benefits
by Plaintiff Carol J. B. (“Plaintiff”). Dkt. No. 23. The Magistrate Judge recommends that the
Court affirm the Commissioner’s denial of Plaintiff’s application for benefits. Id. For the reasons
set forth below, the Court agrees, overrules Plaintiff’s objection [Dkt. No. 24], adopts the
Magistrate Judge’s Report and Recommendation [Dkt. No. 23], and affirms the Commissioner’s
denial of benefits.
BACKGROUND
Plaintiff filed an application for disability insurance benefits on January 2, 2018, alleging
disability beginning on January 2, 2018.1 Dkt. No. 13-2 at 15. Plaintiff’s claim was denied initially
on July 18, 2018, and again upon reconsideration on October 30, 2018. Id. At the request of
Plaintiff, an administrative hearing was held in Tulsa, Oklahoma on November 6, 2019 before
1 Originally, Plaintiff alleged an onset date of June 29, 2016, but later amended. Dkt. No. 13-2
at 15.
Administrative Law Judge Laura Roberts (“ALJ”). Id. By written decision issued on February 4,
2020, the ALJ found that Plaintiff was not disabled. Dkt. No. 13-2 at 15-32. The Appeals Council
denied Plaintiff’s request for review on August 15, 2020. Id. at 1. Plaintiff timely filed this appeal
on October 16, 2020. Dkt. No. 2.
United States Magistrate Judge Jodi F. Jayne issued her Report and Recommendation
(“Report”) on December 17, 2021, recommending that the Commissioner’s decision be affirmed.
Dkt. No. 23. Plaintiff timely filed her objection to the Magistrate Judge’s Report on January 3,
2022, requiring review by this Court. Dkt. No. 24.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b)(3), “[t]he district judge must determine
de novo any part of the magistrate judge's disposition that has been properly objected to. The
district judge may accept, reject, or modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with instructions.” In the disability benefits context,
de novo review is limited to determining “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.’” Id. (quoting Fowler v.
Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)). It is more than a scintilla, but less than a
preponderance. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). On review, the Court will
“neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v.
Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (quoting Casias v. Sec’y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)).
DISCUSSION
Plaintiff objects to the Report and Recommendation [Dkt. No. 23] on three (3) bases:
1. The Magistrate Judge erred in finding that the ALJ properly
evaluated Plaintiff’s fibromyalgia as non-medically determinable;
2. The Magistrate Judge incorrectly determined that the ALJ
sufficiently considered and accounted for the medical evidence in
the record; and
3. The Magistrate Judge incorrectly determined that the ALJ properly
found that Plaintiff’s statements were inconsistent with the record.
Dkt. No. 24. The Court will address each of Plaintiff’s objections in turn.
I. Evaluation of Plaintiff’s Fibromyalgia
First, Plaintiff argues that the Magistrate Judge erred in finding that the ALJ properly
evaluated Plaintiff’s fibromyalgia as non-medically determinable. Dkt. No. 24 at 2. Specifically,
Plaintiff argues that the ALJ failed to properly consider Plaintiff’s “pain and its effect on her, no
matter the cause of the pain.” Id. This Court disagrees.
The Social Security Administration (“SSA”) may find that a person has a medically
determinable impairment of fibromyalgia if he or she has all three of the following criteria:
1. A history of widespread pain;
2. Repeated manifestations of six or more [fibromyalgia] symptoms,
signs, or co-occurring conditions, especially manifestations of
fatigue, cognitive or memory problems (“fibro fog”), waking
unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome; and
3. Evidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions were
excluded.
SSR 12-2p (internal citations omitted). Contrary to Plaintiff’s argument, the ALJ did find a history
of widespread pain. Dkt. No. 13-2 at 22 (noting that “the claimant complained of pain all over her
body.”). Additionally, the ALJ found that Plaintiff manifested six or more fibromyalgia
symptoms. Id. at 19. However, because the record showed evidence of other disorders such as
“chronic pain syndrome, osteoarthritis, and migraines or headaches, which could account for
[Plaintiff’s] signs or symptoms” and such other disorders had not been ruled out as the cause, the
ALJ found that the third criterion of SSR 12-2p was not satisfied. Id. In support of this finding,
the ALJ pointed to Dr. Thompson’s evaluation, in which he assessed Plaintiff for fibromyalgia,
but did not exclude any other possible disorders or explanations for Plaintiff’s symptoms. Id.
Further, as the Magistrate Judge correctly states, it is not the diagnosis, but the resulting
functional limitations that determine disability. See Coleman v. Charter, 58 F.3d 577, 579 (10th
Cir. 1995). Plaintiff has not pointed to any functional limitations in the record which would
support Dr. Thompson’s fibromyalgia diagnosis. The ALJ’s finding that Plaintiff’s fibromyalgia
was non-medically determinable is supported by substantial evidence.
Additionally, to the extent Plaintiff argues that the ALJ failed to adequately consider her
subjective complaints of pain in evaluating her fibromyalgia, this Court disagrees. “A claimant's
subjective allegation of pain is not sufficient in itself to establish disability.” Thompson v.
Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (citing Gatson v. Bowen, 838 F.2d 442, 447 (10th
Cir.1988)). In analyzing a claimant’s subjective evidence of pain, the ALJ must consider:
(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.
Musgrave v. Sullivan, 966 F.2d 1371, 1375–76 (10th Cir.1992) (citing Luna v. Bowen, 834 F.2d
161, 163-4 (10th Cir.1987)). As discussed above, the ALJ properly found that the objective
medical evidence did not support a finding of fibromyalgia under SSR 12-2p. Therefore, there
was no “proven impairment” for the ALJ to consider in relation to Plaintiff’s subjective evidence.
Regardless, the ALJ clearly discussed and considered Plaintiff’s subjective complaints of pain.
For these reasons, the Magistrate Judge determined that the ALJ properly applied SSR 12-p to find
fibromyalgia to be medically non-determinable. This Court agrees.
II. Consideration of Medical Evidence
Next, Plaintiff takes issue with the ALJ’s consideration of the medical evidence in the record.
Dkt. No. 24. While the Magistrate Judge concluded that Plaintiff had waived any objection
regarding the ALJ’s consideration of medical evidence because Plaintiff’s argument was
unsupported, conclusory, and reliant upon an outdated standard for evaluating medical source
opinion, the Court will nonetheless consider this objection. See Dkt. No. 23 at 10-11.
Contrary to her insistence otherwise, Plaintiff’s objection here essentially asks the Court to
reweigh the medical evidence in the record. Although Plaintiff asserts that the ALJ failed to
properly consider the entire record and apply the required legal standards, Plaintiff does not
actually point to any parts of the record that the ALJ failed to consider and does not specifically
indicate which legal standards the ALJ failed to apply. Instead, Plaintiff vaguely argues that the
evidence that she points to “overwhelms the ALJ’s RFC finding.” Dkt. No. 24 at 4. The ALJ
considered the evidence Plaintiff points to but, upon weighing such evidence with the entire record,
simply found it insufficient to support a finding of disability.
For example, Plaintiff takes issue with the ALJ’s treatment of Dr. Timothy D. Doty’s report,
accusing the ALJ of “picking and choosing of evidence, highlighting evidence that could support
the unfavorable RFC, while minimizing evidence that shows more limitations than the ALJ
acknowledged.” Dkt. No. 24 at 3. However, it is Plaintiff who does the picking and choosing
here. Plaintiff only points to the portions of Dr. Doty’s report which appear to support her position,
such as Dr. Doty’s opinion that Plaintiff’s ability to sustain concentration and persist in work-
related tasks appeared “poor at present” and that Plaintiff did not “seem to include intentional or
misleading over/underreporting.” Id. at 4. While the ALJ acknowledged those portions of the
report, the ALJ noted that Dr. Doty also opined that Plaintiff’s ability to “engage in work-related
mental activities appear[ed] moderate . . . [and] that her ability to understand work-related mental
activities appear[ed] moderate.” Dkt. No. 13-2 at 29. Further, Dr. Doty opined that Plaintiff’s
“mental status, at the time of the consultative examination, suggested that she was cognitively
capable of managing disability benefits if she was to receive them.” Id. In addition, while it seems
that Plaintiff reported “some vague suicidal ideation and visual hallucination during examination,”
Dr. Doty did not seem to think any of Plaintiff’s reports or presentation required a referral for
inpatient assessment, or any further action on his part. Id. In short, the ALJ found that Dr. Doty’s
report was not only internally inconsistent, but inconsistent with other evidence, noting that other
mental status examinations discussed in the record were largely unremarkable. Id.; see Pisciotta
v. Astrue, 500 F.3d 1074, 1078 (10th Cir.) (“Medical evidence may be discounted if it is internally
inconsistent or inconsistent with other evidence.” (internal citation omitted)). The ALJ was not
“picking and choosing” but rather weighing the evidence and this Court cannot and will not
reweigh that evidence on Plaintiff’s behalf.
III. Finding of Inconsistent Statements
Finally, Plaintiff argues that the Magistrate Judge incorrectly determined that the ALJ properly
found Plaintiff’s statements to be inconsistent with the record.2 Dkt. No. 24 at 6. To the extent
2 In arguing that the ALJ did not properly make a finding of inconsistent statements, Plaintiff
advances an argument regarding her statement that “she had ‘not been able to go back to
rheumatology as she ha[d] a balance.’” Dkt. No. 24 at 6. However, because this statement was
noted in the ALJ’s summary of the record, and not as a reason for finding Plaintiff’s subjective
complaints inconsistent with the record, the Court will not address this argument.
Plaintiff argues that there was not substantial evidence to support the ALJ's determination that she
was not entirely credible, this Court disagrees. "Credibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when supported by
substantial evidence." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995) (citing Diaz v. Secretary
of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). "[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. (citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.1988) (footnote
omitted); see also Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.1992) (ALJ "must articulate
specific reasons for questioning the claimant's credibility" where subjective pain testimony is
critical); Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir.1988) ("failure to make
credibility findings regarding . . . critical testimony fatally undermines the Commissioner's
argument that there is substantial evidence adequate to support her conclusion that claimant is not
under a disability")). In determining whether a claimant's subjective complaints of pain are
credible, the ALJ should consider various factors, such as:
The levels of medication and their effectiveness, the extensiveness
of the attempts (medical or nonmedical) to obtain relief, the
frequency of medical contacts, the nature of daily activities,
subjective measures of credibility that are peculiarly within the
judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility
of nonmedical testimony with objective medical evidence.
Wilson v. Astrue, 602 F.3d 1136, 1145 (10th Cir. 2010) (quoting Hargis v. Sullivan, 945 F.2d 1482,
1489 (10th Cir.1991)) (finding that while “medically determinable impairments could reasonably
be expected to produce some of the alleged symptoms [, ] the claimant's statements concerning the
intensity, duration and limiting effects of these symptoms are not entirely credible.").
Here, the ALJ found that although Plaintiff’s statements regarding her symptoms may have
been consistent with the evidence in the record, Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of these symptoms” were not. Dkt. No. 13-2 at 23. For example,
the ALJ noted that while Plaintiff made some complaints regarding medication side effects in her
testimony, the record shows that (1) Plaintiff often denied medication side effects, (2) any
complaints of mediation side effects were immediately addressed, and (3) Plaintiff returned to
medication without any continued complaints of side effects. Id. at 22-23. Additionally, the ALJ
found that while Plaintiff stated she was experiencing a pain level of 7/10, the contemporary
physical examination did not reflect such a level of pain. Id. at 24-25. Though Plaintiff indicated
some tenderness, her strength tests were scored 5/5, her overall affect was normal, and she was not
in distress. Id. Because the ALJ’s decision points to specific instances of inconsistencies, this
Court finds that there is substantial evidence on the record to support the ALJ’s credibility
determination. See Wilson, 602 F.3d at 1144. The Magistrate Judge did not err in also making
such a finding.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff Carol J. B.’s Objection [Dkt. No. 24] is
OVERRULED, the Court ADOPTS the Magistrate Judge’s Report and Recommendation [Dkt.
No. 23], and AFFIRMS the Commissioner’s denial of benefits.
DATED this 28th day of March 2022.
____________________________________
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE