Moreno v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

DELIA MORENO, )

)

Plaintiff, )

)

v. ) Case No. 23-cv-359-DES

)

LELAND DUDEK,1 )

Acting Commissioner of the Social )

Security Administration, )

)

Defendant. )

OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), Plaintiff Delia Moreno (“Claimant”) seeks judicial review

of a final decision by the Commissioner of the Social Security Administration (“Commissioner”)

denying her claim for disability insurance benefits under Title II of the Social Security Act (the

“Act”). For the reasons explained below, the Court AFFIRMS the Commissioner’s decision

denying benefits.

I. Statutory Framework and Standard of Review

The Act defines “disability” as the “inability to engage in any substantial gainful activity

by 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.” 42 U.S.C. § 423(d)(1)(A). To be deemed disabled under the Act, a claimant’s

impairment(s) must be “of such severity that [s]he is not only unable to do h[er] previous work but

1 Effective February 17, 2025, Leland Dudek, Acting Commissioner of Social Security, is substituted as

the defendant in this action pursuant to Fed. R. Civ. P. 25(d). No further action is necessary to continue

this suit by reason of 42 U.S.C. § 405(g).

cannot, considering h[er] age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

Social security regulations implement a five-step sequential process to evaluate a disability

claim. 20 C.F.R. § 404.1520(a)(4). This process requires the Commissioner to consider:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers

from a medically determinable severe impairment(s); (3) whether such impairment meets or

medically equals a listed impairment set forth in 20 C.F.R. pt. 404, subpt. P., app. 1; (4) whether

the claimant can perform her past relevant work considering the Commissioner’s assessment of

the claimant’s residual functional capacity (“RFC”); and (5) whether the claimant can perform

other work considering the RFC and certain vocational factors. 20 C.F.R. § 404.1520(a)(4)(i)-(v).

Although the claimant bears the burden of proof through step four, the burden shifts to the

Commissioner at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). If it is determined,

at any step of the process, that the claimant is or is not disabled, evaluation under a subsequent

step is not necessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

A district court’s review of the Commissioner’s final decision is governed by 42 U.S.C.

§ 405(g). The scope of judicial review under § 405(g) is limited to determining whether the

Commissioner applied the correct legal standards and whether the Commissioner’s factual findings

are supported by substantial evidence. See Noreja v. Soc. Sec. Comm’r, 952 F.3d 1172, 1177 (10th

Cir. 2020). Substantial evidence is more than a scintilla but means only “‘such evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In

conducting its review, the Court “may neither reweigh the evidence nor substitute [its] judgment

for that of the agency.” Noreja, 952 F.3d at 1178 (quotation omitted). Rather, the Court must

“meticulously examine the record as a whole, including anything that may undercut or detract from

the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue,

515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted).

II. Claimant’s Background and Procedural History

On February 6, 2012, Claimant protectively applied for disability insurance benefits under

Title II of the Act. (R. 11, 124-29). Claimant alleges she has been unable to work since December

1, 2011, due to problems with her back, neck, and left knee; headaches; high blood pressure; acid

reflux; diabetes; and anxiety. (R.126, 151). Claimant was 58 years old on the date of the

Administrative Law Judge’s (“ALJ”) decision. (R. 126, 938, 950). She has a high school education

and past work as a production line assembler. (R. 936, 957, 993).

Claimant’s claim for benefits was denied initially and on reconsideration, therefore she

requested a hearing. (R. 65-70, 83). ALJ Bernard Porter conducted an administrative hearing and

issued a decision on September 13, 2013, finding Claimant not disabled. (R. 11-64). The Appeals

Council denied review, and Claimant appealed to the United States District Court for the Eastern

District of Oklahoma. (R. 603-24). The Court reversed the ALJ’s decision and remanded the case

on September 28, 2016, with instructions to consider Listing 1.04. (R. 608-23). On remand, ALJ

Doug Gabbard, II conducted a second administrative hearing and issued a decision on July 11,

2017, again finding Claimant not disabled. (R. 540-62, 632-41). Claimant filed written exceptions

to this second unfavorable decision. (R. 707-11). On October 5, 2018, the Appeals Council

reversed and remanded the ALJ’s decision with instructions to consider Listing 1.04(A). (R. 650-

51). On remand, ALJ Gabbard held a third administrative hearing and issued a decision on

February 13, 2019, again finding Claimant not disabled. (R. 520-32, 563-89). Claimant filed

written exceptions to this third unfavorable decision. (R. 783-92). The Appeals Council denied

review, and Claimant again appealed to the United States District Court for the Eastern District of

Oklahoma. (R. 510-516, 1019-34). The Court reversed the ALJ’s decision and remanded the case

on March 25, 2022, with instructions to consider Dr. John Anigbogu’s medical source opinion.

(R. 1019-34). On remand, ALJ Michael Mannes held a fourth administrative hearing and issued a

decision on March 29, 2023, once again finding Claimant not disabled. (R. 923-38, 948-1000).

Claimant filed written exceptions to this fourth unfavorable decision. (R. 1131-34). On August 17,

2023, the Appeals Council determined Claimant’s written exceptions did not provide a basis for

changing the ALJ’s decision, rendering ALJ Mannes’s March 29, 2023, decision the

Commissioner’s final decision for purposes of this appeal. 20 C.F.R. § 404.984(b)(2). Claimant

filed this appeal on October 23, 2023. (Docket No. 2).

III. The ALJ’s Decision

In his decision, ALJ Mannes found Claimant last met the insured requirements for Title II

purposes on December 31, 2016. (R. 925). The ALJ then found at step one that Claimant had not

engaged in substantial gainful activity during the period from her alleged onset date of December

1, 2011, through her date last insured of December 31, 2016. (R. 926). At step two, the ALJ found

Claimant had severe impairments of lumbar and cervical spine disorder, dysfunction of major

joints, and asthma. (Id.). At step three, the ALJ found Claimant’s impairments did not meet or

equal a listed impairment. (R. 928-29).

Before proceeding to step four, the ALJ determined Plaintiff had the RFC to perform a

range of light work as defined in 20 C.F.R. § 404.1567(b) with the following non-exertional

limitations:

[T]he claimant can never climb ladders, ropes, or scaffolds. [T]he claimant can

occasionally climb stairs and ramps. [T]he claimant is limited to frequent balancing,

stooping, kneeling, crouching, and crawling. [T]he claimant can frequently reach,

handle, and finger bilaterally. [T]he claimant must avoid frequent exposure to dusts,

fumes, gases, odors, and pulmonary irritants. The claimant must avoid all exposure

to unprotected heights and occasional exposure to vibrations. [T]he claimant must

avoid frequent exposure to loud noise.

(R. 929). The ALJ provided a summary of the evidence that went into this finding. (R. 929-36).

At step four, the ALJ concluded that Claimant could not return to her past relevant work.

(R. 936). Based on the testimony of a vocational expert (“VE”), however, the ALJ found at step

five that Claimant could perform other work existing in significant numbers in the national

economy, including housekeeping cleaner, routing clerk, and marker. (R. 936-37). Accordingly,

the ALJ concluded Claimant was not disabled. (R. 937).

IV. Issues Presented

Claimant asserts the ALJ erred by: (1) evaluating her musculoskeletal impairments using

Listings 1.15, 1.16, and 1.18 (Docket No. 9 at 3); (2) failing to properly evaluate Dr. John

Anigbogu’s medical source opinion regarding Claimant’s ability to stand and walk (Id. at 3-5);

and (3) failing to properly evaluate her subjective symptoms (Id. at 5-6). The Court finds no

reversible error in the ALJ’s decision.

V. Analysis

A. Application of Former Listing 1.04

In a largely undeveloped and conclusory argument, Claimant asserts the ALJ erred by

applying Listings 1.15, 1.16, and 1.18, which were not in effect at the time of Claimant’s

application, rather than applying Listing 1.04, which was. Claimant’s argument is unpersuasive.

At step three of the sequential evaluation, the ALJ considers whether a claimant’s severe

impairment(s) meets or medically equals one of the listed impairments the Commissioner deems

sufficiently severe as to preclude substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(iii),

20 C.F.R. Pt. 404, Subpt. P., App. 1. Listed impairments are “conclusively presumed to be

disabling.” Lax, 489 F.3d at 1085 (quotation omitted). Thus, if a claimant’s medically severe

impairment(s) meets or equals one of the listed impairments, she will be found disabled without

considering her age, education, and work experience. 20 C.F.R. § 404.1520(d). In order to meet a

listing, the claimant’s impairment(s) must satisfy all of the criteria of that listing. 20 C.F.R.

§ 404.1525(c)(3). “An impairment that manifests only some of those criteria, no matter how

severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

At step three, the ALJ considered whether Claimant’s impairments met or medically

equaled Listings 1.15, 1.16, and 1.18, which apply to musculoskeletal disorders, and ultimately

concluded that Claimant did not have an impairment or combination of impairments that “would

even closely match the description of listings 1.15, 1.16, and 1.18.” (R. 928-29). In reaching this

conclusion, the ALJ acknowledged Dr. Wilson’s opinion that Claimant met the requirements of

Listing 1.04(A) as well as Dr. Anigbogu’s opinion that she did not; however, the ALJ assigned

these opinions “limited weight” since they were based on the “old musculoskeletal listings.”

(R. 929).

Claimant asserts that Listings 1.15, 1.16, and 1.18 were not the appropriate listings to

consider because they were implemented after her application date and after the Appeals Council’s

October 2018 remand which instructed the ALJ to consider Listing 1.04(A).2 The Court disagrees

and finds that the ALJ considered the proper listings. First, when the Social Security

Administration revised the listings for musculoskeletal disorders, it provided that the rules would

2 Claimant asserts that “all of the decisions and evidence in this claim are directed” to Listing 1.04, but this

is not an accurate account of the history of this claim. Notably, this Court’s order dated September 28, 2016,

as well as the Appeals Council’s order dated October 5, 2018, did instruct the ALJ to consider Listing 1.04

(R. 608-23, 650-51). However, this Court’s order dated March 25, 2022, did not. In that order, the ALJ was

instructed to consider Dr. Anigbogu’s opinion regarding Claimant’s standing and walking limitations, not

Listing 1.04 as Claimant suggests. (R. 1019-34). The Court does not appreciate counsel’s lack of candor

here, especially considering Claimant’s argument is otherwise entirely undeveloped.

become effective on April 2, 2021. 85 Fed. Reg. 78164-01, 2020 WL 7056412 (Dec. 3, 2020). The

Agency then explained: “When the final rules become effective, we will apply them to new

applications filed on or after the effective date of the rules, and to claims that are pending on or

after the effective date.” Id. Thus, under the Agency’s own policies, the ALJ applied the correct

listings. Second, Claimant’s inability to rely on Listing 1.04 is not dispositive of her claim for

disability. Although she is precluded from a determination that she is presumptively disabled at

step three, she is not precluded from demonstrating that she is nevertheless disabled at steps four

and five. Furthermore, Claimant does not cite any case law, nor has this Court been able to find

any, suggesting the older listing should apply. Finally, Tenth Circuit case law suggests otherwise.

See Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (“We refer to the regulations in effect

at the time of the ALJ’s decision.”). Therefore, because Listings 1.15, 1.16, and 1.18 were in effect

at the time of the ALJ’s decision, the ALJ did not err by applying them.

B. Dr. Anigbogu’s Standing and Walking Limitations

For claims filed before March 27, 2017, the weight given to a medical opinion depends, in

part, on its source. See 20 C.F.R. § 404.1527(c). Medical opinions from sources who examined the

claimant, such as consultative examiners, generally receive more weight than non-examining

medical sources. 20 C.F.R. § 404.1527(c)(1). Nonetheless, the ALJ must “consider a series of

specific factors in determining what weight to give any medical opinion.” Hamlin v. Barnhart, 365

F.3d 1208, 1215 (10th Cir. 2004) (citation omitted). Those factors are: (1) the examining

relationship; (2) the length, nature, and extent of the treatment relationship and frequency of

examination; (3) the degree to which the medical source provides relevant evidence to support the

opinion; (4) the opinion's consistency with the record as a whole; (5) the medical source’s

specialization; and (6) any other factors that may support or contradict the opinion. 20 C.F.R.

§ 404.1527(c)(1)-(6). When evidence is inconsistent, the ALJ has the discretion to weigh the

conflicting evidence to determine whether the claimant has shown she is disabled. See 42 U.S.C.

§ 405(g); 20 C.F.R. § 404.1520b(b). The ALJ’s findings are conclusive when they are supported

by substantial evidence. 42 U.S.C. § 405(g).

On November 28, 2018, Dr. Anigbogu completed a form titled “Medical Statement of

Ability to Do Work-Related Activities (Physical),” wherein he opined, inter alia, that Claimant

could stand for three hours at a time without interruption for a total of three hours in an eight-hour

work day and could walk for three hours at a time without interruption for a total of three hours in

an eight-hour work day. (R. 907). Although Dr. Anigbogu was instructed to identify the medical

or clinical findings that supported these limitations, he cited none. Id. Likewise, Dr. Anigbogu did

not indicate the time period for which these limitations applied, when they were first present, or if

they would last twelve consecutive months, despite being prompted to do so. (Tr. 911).

In his written opinion, the ALJ thoroughly recounted Dr. Anigbogu’s opinion regarding

Claimant’s standing and walking limitations and noted that Dr. Anigbogu was a medical expert

familiar with social security regulations and had the opportunity to review the medical evidence

of record. (R. 933-34). The ALJ then rejected Dr. Anigbogu’s standing and walking limitations,

finding such limitations were inconsistent with: (1) Claimant’s self-reported ability to walk a mile;

(2) the mild to moderate degenerative changes noted in the MRI imaging; (3) the largely normal

physical examination findings of record, including a normal gait and Claimant’s ability to

ambulate without an assistive device; (4) Claimant’s use of over-the-counter pain medication;

(5) Claimant’s daily activities; (6) the minimal limitations identified by Claimant’s primary care

providers; and (7) Claimant’s two-year gap in treatment during the adjudicative period. (R. 933).

Despite the ALJ’s detailed analysis, Claimant nonetheless asserts the ALJ failed to provide

a legitimate rationale for rejecting Dr. Anigbogu’s standing and walking limitations. (Docket No.

9 at 3-5). The Court finds the ALJ applied the correct legal standards and his decision to reject Dr.

Anigbogu’s opinions is supported by substantial evidence. First, Claimant specifically asserts the

ALJ “picked one comment from the record in 2022” to discount Dr. Anigbogu’s standing and

walking limitations. This argument is belied by the record. As set forth above, the ALJ provided

numerous reasons, supported by the record, for rejecting Dr. Anigbogu’s standing and walking

limitations and concluding instead that Claimant could stand and/or walk six hours in an eight-

hour workday instead. (R. 933-34).

Claimant further contends the ALJ ignored her report to her mental health provider that

increased walking caused intermittent numbness and tingling in her left foot. (Docket No. 9 at 4).

It is well-established that an ALJ may not “pick and choose among medical reports, using portions

of evidence favorable to h[is] position while ignoring other evidence.” Hardman v. Barnhart, 362

F.3d 676, 681 (10th Cir. 2004). This rule follows from the broader directive that “in addition to

discussing the evidence supporting his decision, the ALJ must also discuss the uncontroverted

evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.”

Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). However, the ALJ is not required to discuss

each piece of evidence in the record in detail. See id. at 1009-10. (“The record must demonstrate

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

evidence.”). Although the ALJ did not specifically reference this particular treatment note, he did

note Claimant’s testimony that she experiences neuropathy and paresthesia. (R. 926). Claimant

fails to explain how this single report of intermittent numbness and tingling in her left foot with

increased walking to her mental health provider demonstrates greater RFC limitations than the

ALJ identified. Because Claimant points to no evidence the ALJ failed to consider, her arguments

amount to a request that the Court reweigh the evidence, which it cannot do. See Hackett v.

Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (“We consider whether the ALJ followed the

‘specific rules of law that must be followed in weighing particular types of evidence in disability

cases,’ but we will not reweigh the evidence or substitute our judgment for the Commissioner's.”

(citations omitted)).

In any event, Dr. Anigbogu’s opinion is consistent with the requirements of light work

because he found Claimant could stand for three hours and could walk for three hours, i.e., a

combined total of six hours. See Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *6

(Jan. 1, 1983) (“[T]he full range of light work requires standing or walking, off and on, for a total

of approximately 6 hours of an 8-hour workday.”). Thus, the ALJ found Dr. Anigbogu’s specific

standing and walking limitations unpersuasive but adopted his opinion that Claimant could

perform light work. “It is not error for the ALJ to credit a portion of a medical opinion and discount

other portions of the opinion.” Jones v. Astrue, 500 F.Supp 2d 1277, 1285 (D. Kan 2007).

Accordingly, the ALJ's RFC limiting Claimant to a limited range of light work is supported by

substantial evidence.

C. ALJ Properly Evaluated the Consistency of Claimant’s Subjective Symptoms

Claimant next contends the ALJ erred in evaluating her subjective symptoms, specifically

arguing the ALJ improperly discounted her symptoms based on her ability to work beyond her

alleged onset date, her failure to take prescription medication, and her failure to seek treatment.

(Docket No. 9 at 5-6).

The ALJ is required to consider Claimant’s subjective complaints, or symptoms3 in

determining the RFC. 20 C.F.R. § 404.1529(a) & (d)(4). The Commissioner uses a two-step

process when evaluating a claimant’s symptoms.4 SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25,

2017); see also 20 C.F.R. § 404.1529. First, the medical signs or laboratory findings must show

the existence of medical impairment(s) that result from anatomical, physiological, or psychological

abnormalities and could reasonably be expected to produce the symptoms alleged. SSR 16-3p at

*3. Second, once such impairments are established, the ALJ must then evaluate the intensity and

persistence of the symptoms, so he can determine how the symptoms limit the claimant’s ability

to work. Id. at *4.

Factors the ALJ should consider as part of the symptom evaluation include: (1) the

claimant’s daily activities; (2) the location, duration, frequency, and intensity of symptoms;

(3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of

medications; (5) treatment aside from medication; (6) any other measures the claimant has used to

relieve symptoms; and (7) other factors concerning functional limitations and restrictions due to

the symptoms. Id. at *7-8. The ALJ’s consistency findings “should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.” Cowan v. Astrue,

552 F.3d 1182, 1190 (10th Cir. 2008) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

The ALJ’s decision “must contain specific reasons for the weight given to the individual’s

3 Symptoms mean a claimant’s “own description of [her] physical or mental impairment.” 20 C.F.R. § 404.1502(i).

4 Tenth Circuit precedent characterizes this as a three-step process: (1) whether the claimant established a symptom-

producing impairment by objective medical evidence; (2) if so, whether the impairment is reasonably expected to

produce some symptom of the sort alleged (a “loose nexus”); and (3) if so, whether, considering all objective and

subjective evidence, the claimant’s symptom was in fact disabling. See Keyes-Zachary v. Astrue, 695 F.3d 1156,

1166-67 (10th Cir. 2012) (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)). The two-step analysis under

SSR 16-3p comports with this prior, three-step process under Luna. Paulek v. Colvin, 662 F. App’x 593-94 (10th Cir.

2016) (unpublished). However, the term “credibility” is no longer used. SSR 16-3p at *2. For purposes of this

opinion, the Court will refer to the process as a “consistency analysis.”

symptoms, be consistent with and supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s

symptoms.” SSR 16-3p at *10. Because consistency findings are “peculiarly the province of the

finder of fact,” reviewing courts should “not upset such determination when supported by

substantial evidence.” Cowan, 552 F.3d at 1190 (quoting Kepler, 683 F.3d at 391).

In his written decision, the ALJ summarized Claimant’s Function Report, administrative

hearing testimony from multiple hearings, the Third-Party Function Report completed by

Claimant’s sister, and the objective medical evidence. (R. 926-36). The ALJ found Claimant’s

statements regarding the intensity, persistence, and limiting effects of her symptoms were not

entirely consistent with the medical and other evidence in the record. (R. 930). In reaching this

conclusion, the ALJ discussed numerous inconsistencies between Claimant’s subjective

complaints and the evidence of record, including: (1) Claimant’s report that she stopped working

in 2011 because her employer closed, rather than due to her impairments; (2) negative x-rays of

Claimant’s back immediately after her accident; (3) treatment notes showing Claimant improved

with physical therapy; (4) Claimant’s ability to work after her alleged onset date; (5) primary care

records showing consistently normal physical examination findings; (6) the lack of significant

findings on Claimant’s lumbar and cervical MRIs; (7) the absence of surgical intervention,

emergent care, or hospitalization; (8) the effectiveness of conservative treatment; (9) the lack of a

recommendation for an assistive device; (10) the absence of specialized orthopedic treatment after

July 2012; (11) Claimant’s limited medical treatment since 2014; and (12) Claimant’s daily

activities as reported on her Function Report, at the administrative hearing, and to Dr. Anigbogu.

(R. 929-32).

Claimant asserts the ALJ improperly discounted her subjective symptoms based on her

ability to work beyond her alleged onset date. In essence, Claimant asserts the ALJ ignored that

her earnings after her alleged onset date in 2011 were $6,000.00 less than her earnings in 2010

before her accident. As an initial matter, the Court notes that a claimant’s ability to work after the

alleged onset date and the reasons for termination of such employment are relevant considerations

in a consistency analysis. See, e.g., Potter v. Sec’y of Health & Human Servs.,

905 F.2d 1346, 1349 (10th Cir. 1990) (finding ALJ properly considered that “claimant readily

admits she did not leave employment as a result of any health-related impairment” in the

consistency analysis). At the administrative hearing, Claimant herself testified that her reduction

in pay was attributable to both being offered fewer hours due to the impending shut down of the

business as well as her inability to work as many hours as she was able to work before her accident.

(R. 990). Moreover, the ALJ specifically noted that “[a]lthough [Claimant] returned to work in

2011, she did not work full hours.” (R. 929). Thus, the ALJ was clearly aware that Claimant was

not working the same number of hours after her alleged onset date as she was working before her

accident. The Court finds ALJ linked his consistency findings to the evidence and provided clear

and specific reasons for his determination in compliance with the directives of Kepler and its

progeny, SSR 16-3p, and the regulations. Claimant simply disagrees with the ALJ’s interpretation

of the evidence. However, “[t]he possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s findings from being supported by substantial

evidence.” Cowan, 552 F.3d at 1185 (10th Cir. 2008). Moreover, even if the evidence could

support a different finding, the Court cannot “displace the agency’s choice between two fairly

conflicting views . . . .” Id. Claimant’s arguments again amount to a request that the Court reweigh

the evidence and interpret it in her favor, which the Court cannot do. Hackett, 395 F.3d at 1172.

Claimant further asserts the ALJ improperly discounted her symptoms based on her use of

over-the-counter medication and failure to seek medical care. (Docket No. 9 at 6). Although the

ALJ’s use of this reasoning is questionable, the decision makes clear that the ALJ did not base his

entire consistency analysis on these reasons alone. As set forth above, the ALJ provided numerous

other reasons supported by the record to discount Claimant’s subjective symptoms, which

Claimant does not challenge, and the balance of the consistency analysis is thus supported by

substantial evidence. See, e.g., Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004) (“While

we have some concerns regarding the ALJ’s reliance on plaintiff’s alleged failure to follow a

weight loss program and her performance of certain minimal household chores, we conclude that

the balance of the ALJ’s [consistency] analysis is supported by substantial evidence in the

record.”).

VI. Conclusion

For the foregoing reasons, the Commissioner’s decision finding Claimant not disabled is

AFFIRMED.

SO ORDERED this 20th day of March, 2025.

______________________________________

D. EDWARD SNOW

UNITED STATES MAGISTRATE JUDGE