Byrne v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

RICKY T.B., )

)

Plaintiff, )

)

v. ) Case No. 21-CV-49-CDL

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying disability benefits. The parties have

consented to proceed before a United States Magistrate Judge in accordance with 28 U.S.C.

§ 636(c)(1), (2). For the reasons set forth below, the Court affirms the Commissioner’s

decision denying benefits.

I. Standard of Review

The Social Security Act (the Act) provides disability insurance benefits to

qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The

Act defines “disability” as an “inability to engage in any substantial gainful activity by

1 Effective July 9, 2021, pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo

Kijakazi, Acting Commissioner of Social Security, is substituted as the defendant in this

action. No further action need be taken to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” See 42 U.S.C. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court

may not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952

F.3d at 1178.

II. Procedural History

Plaintiff filed an application for social security disability benefits and supplemental

security income disability benefits on January 29, 2019. (R. 10). Plaintiff alleges that he

became disabled due to uncontrolled diabetes, pain throughout his body, neuropathy in his

hands and feet, hepatitis C, and chronic fatigue. (R. 218). He was fifty years old on the

amended alleged onset date of October 1, 2018.2 (R. 16). Prior to the amended onset date,

plaintiff worked as a communications engineer, construction worker, and self-sealing fuel

tank builder. Id. The Commissioner denied plaintiff’s application on initial review and on

reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge

(ALJ).

The ALJ held a telephone hearing on August 7, 2020.3 Testimony was given by

plaintiff and a vocational expert (VE). On September 1, 2020, the ALJ issued a decision

denying disability benefits. (R. 10). On December 7, 2020, the Appeals Council denied

plaintiff’s request for review, which rendered the ALJ’s decision the agency’s final

decision. (R. 1). Plaintiff timely appealed the decision to this Court. Accordingly, the

Court has jurisdiction to review the ALJ’s September 1, 2020 decision under 42 U.S.C. §

405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

2 Plaintiff’s application alleged an onset date of August 23, 2018, but that date was

amended at the administrative hearing.

3 Plaintiff consented on the record to a hearing by telephone due to the extraordinary

circumstances presented by the COVID-19 pandemic and all participants attended via

telephone.

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(internal quotation and citation omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404,

subpt. P, App’x 1 (Listings). At step four, the claimant must show that his impairment or

combination of impairments prevents him from performing his previous work.

The claimant bears the burden on steps one through four. Lax v. Astrue, 489 F.3d

1080, 1084. If the claimant satisfies this burden, thus establishing a prima facie case of

disability, the burden of proof shifts to the Commissioner to show at step five that the

claimant retains the capacity to perform other work available in the national economy, in

light of the claimant’s age, education, and work experience. Id.

A. Step One

At step one, the ALJ determined that plaintiff had not engaged in substantial gainful

activity since October 1, 2018, the amended onset date. (R. 13).

B. Step Two

At step two, the ALJ determined that plaintiff has the following severe impairments:

diabetes, peripheral neuropathy, and low vision. Id. The ALJ found that plaintiff’s

hepatitis C and colon cancer are non-severe. Id.

C. Step Three

At step three, the ALJ found that the plaintiff’s impairments do not meet or

medically equal a Listing. The ALJ stated that specific emphasis was given to Listings

pertaining to loss of central visual acuity (Listing 2.02, et seq.) and peripheral neuropathies

(Listing 11.14, et seq.). (R. 13-14). The ALJ also stated that there is no specified listing

for diabetes. (R. 14).

D. Step Four

The ALJ determined that plaintiff has the RFC to perform light work as defined in

20 CFR 404.1567(b) and 416.967(b), with the following limitations:

no climbing of ladders, ropes, or scaffolds. Stooping,

crouching, crawling, kneeling, balancing, and climbing of

ramps or stairs can be done occasionally. Handling and

fingering can be done frequently bilaterally. No exposure to

unprotected heights, open flames, dangerous machinery or

equipment, or other hazardous conditions (note that all moving

machinery is not dangerous—such as machinery where

moving parts are shielded). No exposure to direct sunlight and

no exposure to elevated levels of interior lighting (elevated

level is higher than ordinarily found in modern office

buildings). No more than occasional use of computer

monitors.

Id. Plaintiff’s past relevant work includes work as a communications engineer (Dictionary

of Occupational Titles (DOT) #003.061-030), construction worker (DOT #869.664-014),

and self-sealing fuel tank builder (DOT #752.684-046). (R. 16). Plaintiff’s past work was

skilled or semi-skilled and classified as light or heavy in exertion. (Id.; see R. 58-62). The

ALJ found that plaintiff is unable to perform any past relevant work and proceeded to

consider the availability of alternative jobs at step five.

E. Step Five

Citing the VE’s testimony as to a hypothetical person with plaintiff’s age, education,

work experience, and RFC, the ALJ found that plaintiff can perform the requirements of

the following representative occupations:

Office helper, light exertion, unskilled, specific vocational

preparation (SVP) level 2, (DOT) # 239.567-410, with 21,000 jobs

existing in the national economy;

Small products assembler, light exertion, unskilled, SVP 2, DOT #

706.684-022, with 55,000 jobs existing in the national economy;

and

Housekeeping cleaner, light exertion, unskilled, SVP 2, DOT #

323.687-014, with 220,000 jobs existing in the national economy.

(R. 17). Accordingly, the ALJ concluded at step five that plaintiff is not disabled, as

defined in the Social Security Act. Id.

IV. Discussion

Plaintiff asserts two points of error in the ALJ’s decision. First, plaintiff argues that

the ALJ’s RFC findings are deficient because the record supports further manipulative and

postural limitations. Specifically, plaintiff argues that the ALJ failed to properly account

for plaintiff’s limitations in his ability to (a) handle and finger and (b) stand and walk due

to his neuropathy. Second, plaintiff argues that the ALJ’s consistency analysis of plaintiff’s

subjective complaints is legally flawed and not supported by substantial evidence. The

Commissioner contends the ALJ’s RFC determination and consistency analysis of

plaintiff’s subjective complaints are supported by substantial evidence in the record and

free from reversible legal error.

A. RFC

i. The ALJ’s Decision

In determining plaintiff’s RFC, the ALJ considered plaintiff’s medical records, prior

administrative medical findings, and plaintiff’s subjective statements. The ALJ’s decision

explained that

[t]here is very little medical evidence. The consultative

examination found sensory loss in the hands and feet,

specifically the first three fingers of the hands. However, the

[plaintiff] had a normal gait. The [plaintiff] takes insulin for

his diabetes, but no other medication. . . . Postural limitations

and vision/environmental limitations are also reasonable due to

light sensitivity and some low vision. … Given the objective

medical evidence in the record, the [ALJ] finds that the

[plaintiff's RFC] is reasonable, and that the [plaintiff] could

function within those limitations without experiencing

significant exacerbation of his symptoms.

(R. 15). Accordingly, the ALJ determined that the RFC is reasonable and plaintiff retains

the ability to perform light work with additional postural and environmental limitations to

accommodate his neuropathy and vision impairments.

ii. Manipulative Limitations

Plaintiff argues that the ALJ failed to adequately consider the medical evidence

regarding the plaintiff’s manipulative limitations. For the reasons set forth below, the Court

finds that the ALJ’s RFC determination is supported by substantial evidence and free from

reversible error.

In determining a claimant’s RFC, “[t]he record must demonstrate that the ALJ

considered all of the evidence, but an ALJ is not required to discuss every piece of

evidence. Rather, in addition to discussing the evidence supporting [the] decision, the ALJ

also must discuss the uncontroverted evidence he chooses not to rely upon, as well as

significantly probative evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.

2014) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)); see also

Bigpond v. Astrue, 280 F. App’x 716, 718, 2008 WL 2222016 (10th Cir. 2008). The focus

of disability determination is on the functional consequences of a condition, not the mere

diagnosis. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (noting that an ALJ’s

failure to include an alleged limitation in the RFC is not error if the limitation is not

supported by the medical record).

Plaintiff suggests that, due to his impairments, he is limited to “less than light work

involving no more than occasional manipulative requirements.” (See Doc. 16. at 8).

Plaintiff contends that the medical evidence regarding his neuropathy supports this more

restricted RFC. Plaintiff cites the October 17, 2019 consultative examination with Peggy

Moore-Gardner, APRN-CNP, where Nurse Moore-Gardner reported that plaintiff had

“poor stooped posture, diminished sensation in the hands (including the fingers) and feet,

hyperpigmentation in the lower legs and feet, and painful lumbar flexion and extension.”

Id. at 2 (citing R. 364-365, 367-370)). The consultative examination also noted that

plaintiff had “diminished 4/5 strength, and 1+ reflexes of the extremities.” Id. (citing R.

365, 367). On the other hand, Nurse Moore-Gardner found that plaintiff could effectively

oppose the thumb to the fingertips, manipulate small objects, and effectively grasp tools

such as a hammer despite his sensory loss in the first three fingers. (See R. 362).

“The burden to prove disability in a social security case is on the claimant, and to

meet this burden, the claimant must furnish medical and other evidence of the existence of

the disability.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (citation

omitted). The threshold for evidentiary sufficiency under the substantial evidence standard

“is not high.” Biestek, --- U.S. ---, 139 S. Ct. at 1154. Substantial evidence “means—and

means only—such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (quotation omitted).

Here, the ALJ’s RFC determination is well-supported by the medical evidence of

record. The ALJ discussed the consultative examination, where Nurse Moore-Gardner

found that plaintiff had “[f]ull range of motion of the neck and back,” and a “stooped

posture.” (R. 15). The ALJ noted that plaintiff’s “[m]otor strength was normal in the upper

and lower extremities.” Id. The ALJ also noted that plaintiff “failed monofilament testing

to both hands and feet,” and there was “hyperpigmentation of both lower legs and feet.”

Id. The ALJ noted that plaintiff was diagnosed with diabetes, neuropathy, and decreased

vision, but no medical opinion was given. Id. (citing Exhibits 7F and 8F). Furthermore,

the ALJ specifically discussed the consultative examination findings at the hearing, noting

that Nurse Moore-Gardner found that plaintiff had “numbness in the first three fingers,”

but his “manipulative functions [were] fully preserved.” (R. 41).

Thus, the ALJ’s decision shows that he considered the medical evidence related to

plaintiff’s neuropathy and assessed an RFC that limits plaintiff to light work with additional

limitations to accommodate his impairments. None of the medical evidence cited by

plaintiff indicates that his neuropathy-related impairments restrict him to the degree he

alleges. “[P]laintiff has not directed [the Court’s] attention to any medical evidence that

was disregarded [by the ALJ]” indicating plaintiff’s impairments warrant greater

limitations than those assessed in the RFC. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.

2000).

Further, The ALJ also considered the prior administrative medical findings of state

agency reviewing physicians.4 The ALJ discussed the report of state agency reviewing

physician Judy Marks-Snelling, D.O., who reviewed plaintiff’s records, including Nurse

Moore-Gardner’s consultative examination report, and determined that plaintiff is capable

of performing light work. (R. 16 (citing Exhibits 7A and 8A)). The ALJ found the opinion

of Dr. Marks-Snelling persuasive “in that light work activity is supported by the evidence.”

Id. However, the ALJ concluded that the evidence supports greater “postural limitations

and vision/environmental limitations due to light sensitivity and some low vision” and

assessed RFC limitations that are more restrictive than those assessed by Dr. Marks-

Snelling, who concluded plaintiff does not require any manipulative or postural

restrictions. Id.

In light of this evidence, the ALJ reasonably found that plaintiff’s impairments do

not prevent him from performing work with the limitations assessed in the RFC “without

experiencing significant exacerbation of his symptoms.” (R. 15). As such, the ALJ’s

decision indicates that he weighed the medical evidence, determined that plaintiff’s

impairments require limitations in handling, fingering, standing and walking, but those

impairments do not warrant restrictions greater than those assessed in the RFC. Substantial

evidence supports the ALJ’s conclusion. Plaintiff’s argument simply invites the Court to

improperly re-weigh the evidence. See Noreja, 952 F.3d at 1177; see also Lax, 489 F.3d at

1084.

4 Plaintiff’s application was reviewed initially on May 22, 2019 by Susan Clifford,

M.D., who determined there was insufficient evidence to evaluate the plaintiff’s claim.

(See R. 16; see also R. 66-79). The ALJ found Dr. Clifford’s opinion not persuasive, noting

“[plaintiff] clearly has a severe impairment that causes more than minimal limitations.” Id.

B. Consistency Analysis

Plaintiff argues that the ALJ erred in finding plaintiff’s statements about the

intensity, persistence, and limiting effects of his symptoms are not entirely consistent with

the medical evidence and other evidence in the record. The ALJ explained his credibility

determination in conjunction with the RFC assessment; therefore, some of plaintiff’s

challenges to the ALJ’s consistency analysis are the same challenges plaintiff asserts to the

ALJ’s RFC determination. Consequently, the discussion below addresses plaintiff’s

challenges to the ALJ’s consistency analysis and RFC determination collectively.

In evaluating a claimant’s statements regarding pain or other symptoms, the ALJ

“must consider (1) whether [a c]laimant established a pain-producing impairment by

objective medical evidence; (2) if so, whether there is a ‘loose nexus’ between the proven

impairment and the [c]laimant’s subjective allegations of pain; and (3) if so, whether,

considering all the evidence, both objective and subjective, [the c]laimant’s pain is in fact

disabling.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (internal citation

omitted).

Federal regulations identify factors the ALJ should consider in evaluating the

consistency of a claimant’s statements: (1) the claimant’s daily activities; (2) the location,

duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate

and/or aggravate symptoms; (4) the type, dosage, effectiveness, and side effects of any

medication the claimant takes or has taken to alleviate symptoms; (5) treatment, other than

medication, the claimant has received for relief of symptoms; (6) any measures other than

treatment the claimant has used to relieve symptoms (such as lying flat on one’s back,

standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any other factors

concerning the claimant’s functional limitations and restrictions due to pain or other

symptoms. SSR 16-3p (citing 20 CFR §§ 404.1529(c)(3) and 416.929(c)(3)).

Plaintiff contends that the ALJ did not properly consider plaintiff’s testimony that

his neuropathy-related impairments necessitate additional RFC restrictions, particularly as

to plaintiff’s ability to handle, finger, and stand and walk for six hours in an eight-hour

workday. Plaintiff cites his testimony that his neuropathy causes “pain and numbness of

the hands and feet with exhaustion occurring after 15-20 minutes of any activity, as well

as general motion sickness and nausea.” (See Doc. 16. at 4 (citing R. 49-50)). Plaintiff

testified that he “suffered from feet swelling as well as weakness in his hands causing him

to drop things and have difficulty with buttons and self care tasks,” he “could only be on

his feet for 30 minutes at a time before resting for at least 45 minutes,” and “his neuropathy

also led to him needing to elevate his feet.” Id. (citing R. 51-56).

However, the ALJ’s decision explained why he found that the objective medical

evidence does not support the alleged severity of plaintiff’s symptoms. The ALJ first

explained the regulations and Social Security Rulings controlling his credibility

determination and explained the two-step process contained therein. (R. 14). The ALJ

recognized that plaintiff’s impairments could produce symptoms such as those alleged, but

found that plaintiff’s statements about the intensity, persistence, and limiting effect of those

symptoms “are not entirely consistent with the medical evidence and other evidence in the

record.” Id. The ALJ then cited details from plaintiff’s medical records, as outlined supra

Part IV.A, to support his findings.

In addition to the medical evidence, the ALJ also found that plaintiff’s statements

about his activities of daily living are inconsistent with the severity of symptoms he alleges.

The ALJ cited plaintiff’s self-reported activities identified in the adult function report dated

August 18, 2019, where plaintiff reported “he cooked meals, checked his sugars 4 times a

day, read, watched television, and had no problems with personal care.” (R. 15 (citing

Exhibit 6E)). Plaintiff reported that he “prepared simple meals, cleaned, did laundry, did

minor repairs, went outside daily, walked, went grocery shopping every two weeks for

about half a day, and could handle his own money.” Id. The ALJ further explained that,

[a]s for [plaintiff’s] statements about the intensity, persistence,

and limiting effects of his symptoms, they are inconsistent

because the [plaintiff] left his last job due to an injury to his

left eye, not due to neuropathy. Given that the [plaintiff] was

capable of heavy work in 2018 and his neuropathy is in the

early stages, light work is not unreasonable. . . . The [plaintiff's]

treating physicians did not place any functional restrictions on

his activities that would preclude light work activity with the

previously mentioned restrictions.

Id. As such, the decision shows the ALJ reasonably concluded the evidence in the record

does not support plaintiff’s claim that his functional limitations would limit his ability to

perform work within the restrictions assessed in the RFC. Nonetheless, plaintiff contends

the ALJ’s reasons for finding plaintiff’s subjective complaints not credible are legally

flawed and not supported by substantial evidence.

Plaintiff contends the ALJ’s finding that plaintiff left his job due to an eye injury

and not neuropathy is not supported by the record. The record shows plaintiff stopped

working in August 2018. (See R. 37). Plaintiff indicated on his application that he left his

last job due to his conditions in general, including neuropathy. (See Doc. 16 at 7 (citing R.

218-219)). However, plaintiff reported at the consultative examination that he “[l]ast

worked in 2018[,] . . . [f]ormerly worked as a spray foam insulator,” and “got chemical in

left eye and has extremely poor vision.” (R. 363). This is consistent with medical evidence

cited by the ALJ from Triad Eye Institute dated July 27, 2018 to September 24, 2018, where

plaintiff sought treatment for “corneal edema after being burned by fumes” at work. (See

R. 15; see also R. 302-333). Thus, the ALJ’s finding is supported by the medical evidence

in the record. Plaintiff points to no medical evidence in the record to support his claim that

he left his job due to his conditions in general, including neuropathy. Therefore, the Court

finds no reversible error in the ALJ’s finding that plaintiff left his job due to an eye injury

and not neuropathy.

Plaintiff also contests the ALJ’s finding that plaintiff’s neuropathy was in the early

stages. Plaintiff contends that “nothing in the medical evidence described it as such [early

stages] and such a description was undermined by “findings of diminished sensation,

strength, and reflexes in the extremities in general and skin color changes of the lower

extremities.” (See Doc. 16 at 8 (citing R. 15, 338, 365, 367)). However, as discussed supra

Part IV.A., the ALJ’s decision shows that he acknowledged the medical evidence related

to plaintiff’s neuropathy impairments and found it is not fully consistent with the degree

of severity plaintiff alleges.

The ALJ cites records from St. Francis Health System dated October 25, 2018 which

show that plaintiff “was diagnosed with a UTI and type II diabetes with severe

hyperglycemia.” (R. 15. (citing Exhibit 5F)). The ALJ noted that the consultative

examination revealed that plaintiff “failed monofilament testing to both hands and feet,”

there was “hyperpigmentation of both lower legs and feet,” and he had “stooped posture.”

Id. However, plaintiff’s “[m]otor strength was normal in the upper and lower extremities”

and he had “[f]ull range of motion of the neck and back.” Id. The ALJ also discussed the

consultative examination findings at the hearing, noting that Nurse Moore-Gardner found

“numbness in the first three fingers,” but plaintiff’s “manipulative functions [were] fully

preserved.” (R. 41). Notably, Nurse Moore-Gardner did not assess any functional

limitations relating to plaintiff’s neuropathy-related impairments. (See R. 362). Further,

Nurse Moore-Gardner’s findings are consistent with an RFC of light work with limitations

to accommodate plaintiff’s impairments. See 20 C.F.R. § 404.1529(c)(4) (plaintiff’s

statements are to be evaluated “in relation to the objective medical evidence.”).

Plaintiff’s contention is correct that the medical evidence does not specifically

describe his neuropathy as being in the early stages. However, as the ALJ correctly noted,

“[plaintiff] was capable of heavy work in 2018” which contradicts the severity of plaintiff’s

alleged neuropathy-related limitations. (R. 15). For instance, plaintiff reported in his adult

function report that one of the daily duties he performed at his last job as a spray foam

insulator was “to swap out (load/unload) material daily” which required lifting “two 55 gal

drums 500 lbs per drum.” (R. 242). Plaintiff also reported he would “drag hoses 310 ft

long 1 lb/ft,” and he “lifted various tools” and “ladders.” Id. Plaintiff reported he was

capable of lifting 100 pounds or more, and he could lift 50 pounds or more frequently. Id.

Plaintiff reported that he used “machines, tools, or equipment.” Id. Plaintiff reported that

each workday he would walk for three hours; stand for five hours; sit for two hours; and

climb, stoop, kneel, crouch, and crawl for one hour. Id. He reported that each workday he

would handle, grab, or grasp big objects and write, type, or handle small objects for two

hours. Id. He also reported that he would reach for six hours each workday. Id. These

self-reported heavy work duties support the ALJ’s conclusion that plaintiff’s neuropathy is

not as severe as he alleges.

Moreover, a review of plaintiff’s medical records from 2018 fails to show any

instances where plaintiff reported to his medical providers any specific functional

limitations due to his neuropathy. In fact, all of plaintiff’s 2018 medical records reveal that

his reasons for seeking medical treatment were unrelated to his neuropathy. For example,

on January 26, 2018, plaintiff presented to Urgent Care of Muskogee with a complaint of

a chest cough and was diagnosed with influenza (see R. 300); he was seen at the Triad Eye

Institute from July 27, 2018 to September 24, 2018 for corneal ulcer/edema (see R. 302-

333); and he presented to Saint Francis Hospital on October 25, 2018 with complaints of

abdominal pain, fever, chills, diarrhea, nausea, and difficulty with urination. (See R. 334-

358). Additionally, none of the medical records cited by plaintiff indicate that he is unable

to perform work consistent with the restricted range of light work set forth in the RFC. In

light of this evidence, the ALJ’s assertion that plaintiff’s neuropathy is in the early stages

is supported by substantial evidence. Thus, the Court finds no reversible error in the ALJ’s

explanation.

Plaintiff contends the ALJ erred in relying on the absence of any medical opinion

in the record supporting further RFC limitations. Plaintiff argues that lack of any treating

physician opinions “is of little importance” when a claimant was not working or being

evaluated for disability purposes during the relevant time period. (See Doc. 16 at 8 (citing

Ford v. Apfel, 2000 WL 702752, at *4 (10th Cir. 2000) (unpublished)). However, the lack

of a medical opinion showing plaintiff has limitations more restrictive than the RFC is a

factor the ALJ should consider when determining plaintiff’s credibility. See 20 C.F.R. §

404.1529(c)(4) (stating an ALJ must consider whether there are conflicts between a

claimant’s statements and statements by treating or non-treating sources). Here, the ALJ

properly noted that no medical opinion indicated that plaintiff cannot perform work

consistent with the restricted range of light work set forth in the RFC. Moreover, the ALJ’s

consistency determination was not based solely on the failure of plaintiff’s treating

providers to document functional limitations. Thus, the Court finds no reversible error

with the ALJ’s explanation.

Plaintiff also argues that it was error for the ALJ to rely on plaintiff’s lack of

medication and treatment as a factor to discount his credibility, without considering

plaintiff’s intolerance to and inability to afford his medications. Plaintiff testified “he had

twice been unable to afford the colon cancer screening recommended by his doctors and

that he had been diagnosed with but received no treatment for hepatitis C,” he “currently

utilized only insulin after becoming resistant to Metformin and having limited finances,”

and he “could not tolerate compression socks due to them making him sick.” (See Doc. 16

at 4 (citing R. 49-52)). Although the ALJ’s decision did not specifically cite plaintiff’s

statements regarding his intolerance to and inability to afford medications, the ALJ’s

decision indicates that he considered plaintiff’s lack of medication and treatment in his

consistency analysis and RFC determination. For example, the ALJ cited the records from

Saint Francis Hospital dated October 25, 2018, where plaintiff reported he “was reluctant

to use insulin at home and did not like to take medications.” (R. 15). The ALJ also cited

the consultative examination where plaintiff reported “he was diagnosed with hepatitis C

in 2014 but had no treatment.” Id. The ALJ noted plaintiff’s testimony that he had “no

actual diagnosis of colon cancer or treatment for colon cancer,” and “he has no symptoms

of hepatitis C and has received no treatment.” (R. 13).5

The ALJ also questioned plaintiff about his treatment with medications at the

hearing:

ALJ: So you’re—so you’re not taking metformin anymore?

You’re on—and you’re on insulin exclusively?

Pltf: Yes, sir. …

ALJ: Do you take medication, sir, for your neuropathy?

Pltf: No, sir. I take no medications other than the insulin.

ALJ: Okay. Go ahead, Counsel.

Atty: Certainly. And is that just because you can’t afford it?

Pltf: That’s primarily it, sir.

(R. 51, 54). Plaintiff does not identify any evidence in the record, other than his testimony

or statements, where he reported his intolerance to or inability to afford medications to his

medical providers. To the contrary, as the ALJ noted, the medical record reveals that

plaintiff reported he “did not like to take medications.” (R. 15). This evidence is

5 The ALJ found that plaintiff’s colon cancer and hepatitis C were non-severe

impairments, which plaintiff has not appealed. Accordingly, this opinion addresses

plaintiff’s challenges regarding his functional limitations due to his neuropathy. (See Doc.

16).

inconsistent with plaintiff’s testimony that his inability to pay for medications is the

primary reason he does not take them. Moreover, plaintiff’s lack of medication and

treatment is only one of the reasons the ALJ gave for finding plaintiff’s subjective

complaints not credible. As outlined herein, the ALJ’s consistency analysis is also

supported by the objective medical evidence and plaintiff’s statements regarding his

activities of daily living. Accordingly, the Court finds no reversible error in ALJ’s

consideration of plaintiff’s lack of treatment and medication.

Lastly, plaintiff argues that the ALJ’s consistency analysis failed to address “any of

the non-medical evidence pertinent to other relevant factors like [plaintiff’s] daily

activities.” (See Doc. 16 at 10). However, as set forth above, the ALJ’s decision

specifically addressed plaintiff’s activities of daily living and adequately set forth his

reasoning for finding plaintiff’s subjective statements were not supported by the objective

medical evidence. Thus, the ALJ’s reasoning, and the evidence on which he relied, are

sufficient to enable meaningful judicial review, and his consistency determination is

entitled to deference. See Keyes-Zachary, 695 F.3d at 1166; Kepler, 68 F.3d at 391.

V. Conclusion

The Court finds the ALJ’s decision is supported by substantial evidence and reflects

that the ALJ applied the proper legal standards. Therefore, the decision of the

Commissioner finding plaintiff not disabled is affirmed.

ORDERED this 30th day of September, 2022.