Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VALERIE LEA M.,1 )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 25-2224-JWL
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
______________________________________)
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Social Security Disability Insurance (SSDI) benefits pursuant to sections 216(i)
and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act).
Finding no error in the Administrative Law Judge’s (ALJ’s) decision, the court ORDERS
that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
AFFIRMING the Commissioner’s final decision.
I. Background
Plaintiff protectively filed an application for SSDI benefits on July 9, 2022. (R.
17, 178-82). After exhausting administrative remedies before the Social Security
1 The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of disability claimants, it has determined to
caption Social Security decisions using only the initial of the Plaintiff’s last name.
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Administration (SSA), Plaintiff filed this case seeking judicial review of the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ failed
properly to evaluate her obesity and fibromyalgia; failed properly to assess the total
effects of her combined mental and physical impairments on her ability to remain on-task
and on her attendance; failed to support the findings that Plaintiff’s allegations of
symptoms were inconsistent with the evidence; and failed to support the ALJ’s
persuasiveness findings regarding the medical opinions and prior administrative medical
findings.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). “Substantial evidence” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but less
than a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Consequently, to overturn an agency’s finding of fact the court “must find that the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
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The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (brackets in
Bowling)). Nonetheless, the determination whether substantial evidence supports the
Commissioner’s decision is not simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion.
Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or
equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the
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Commissioner assesses claimant’s residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four and step five of the sequential
evaluation process. Id.
The Commissioner next evaluates steps four and five of the process—determining
at step four whether, considering the RFC assessed, claimant can perform her past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, she is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). The court addresses the error alleged in Plaintiff’s Social Security Brief in a
somewhat different order than Plaintiff.
II. Evaluation of Plaintiff’s Allegations of Symptoms
Plaintiff cites the portion of the ALJ’s decision wherein the ALJ explained the
inconsistencies she found between Plaintiff’s allegations of symptoms and the record
evidence and argues the ALJ improperly “cherry-picked benign findings and emphasized
improvement with treatment and medication.” (Pl. Br. 16) (citing R. 26-27). She
continues, that the ALJ relied on “the most basic activities of daily living” and asserted
the skills necessary for such activities “are like those required for full-time competitive
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employment.” (Pl. Br. 16-17) (quoting R. 27). She argues, “an individual’s ability to
perform basic life activities does not translate into an ability to perform work related
activities on a full-time basis,” and the activities listed by the ALJ are “not comparable to
work-related activities within the context of a full-time work environment – five days per
week, eight hours per day.” Id. 17.
A. Standard for Considering a Claimant’s Allegation of Symptoms
An ALJ’s evaluations of a claimant’s allegation of symptoms are generally treated
as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent
v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). Such “determinations are peculiarly the
province of the finder of fact” and will not be overturned when supported by substantial
evidence. Wilson, 602 F.3d at 1144; accord Hackett, 395 F.3d at 1173. Therefore, in
reviewing the ALJ’s evaluations, the court will usually defer to the ALJ on matters
involving a claimant’s allegations. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
However, such findings “should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Wilson, 602 F.3d at 1144
(quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett, 395 F.3d at
1173.
The court’s review of an ALJ’s evaluation of a claimant’s allegations of symptoms
is deferential. Such determinations are generally treated as binding on review. Talley v.
Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413
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(10th Cir. 1983). “Credibility determinations2 are peculiarly the province of the finder of
fact” and will not be overturned when supported by substantial evidence. Wilson, 602
F.3d at 1144; accord Hackett, 395 F.3d at 1173.
The framework for a proper analysis of a claimant’s allegation of symptoms is set
out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). An ALJ must consider (1) whether
the claimant has established a symptom-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, the claimant’s symptoms are in fact disabling.
See, Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (explaining the Luna
framework). The Commissioner has promulgated regulations suggesting relevant factors
to be considered in evaluating alleged symptoms: Daily activities; location, duration,
frequency, and intensity of symptoms; factors precipitating and aggravating symptoms;
2 Luna, Thompson, and Kepler, were decided when the term used to describe the
evaluation of a claimant’s allegations of symptoms resulting from her impairments was
“credibility determination.” Although that term is no longer used by the Social Security
Administration, the applicable regulation never used that term and the procedure for
evaluating a claimant’s allegations of symptoms has not significantly changed. Revisions
to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844-01, 5,871
(Jan. 18, 2017) (codified at 20 C.F.R. § 404.1529). Moreover, the Tenth Circuit held its
approach to credibility determination is consistent with the approach set forth in Soc. Sec.
Ruling (SSR) 16-3p. Brownrigg v. Berryhill, 688 Fed. App’x. 542, 546 (10th Cir. 2017).
Therefore, the three-step framework set out in Luna, based on 20 C.F.R. § 404.1529
(2017) is still the proper standard to be used as explained in the regulations in effect on
June 13, 2024, when this case was decided. Nonetheless, to the extent, and only to the
extent, that “subjective measures of credibility that are peculiarly within the judgment of
the ALJ;” Kepler, 68 F.3d at 391; relate to an examination of a claimant’s character, it is
specifically prohibited by SSR 16-3p and is no longer a valid factor to be considered.
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type, dosage, effectiveness, and side effects of medications taken to relieve symptoms;
treatment for symptoms; measures Plaintiff has taken to relieve symptoms; and other
factors concerning limitations or restrictions resulting from symptoms. 20 C.F.R.
§ 404.1529(c)(3)(i-vii). The court has recognized a non-exhaustive list of factors which
overlap and expand upon the factors promulgated by the Commissioner. Luna, 834 F.2d
at 165-66. These factors include:
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.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at
1489).
B. The ALJ’s Findings
The ALJ found, “the claimant’s statements concerning the intensity, persistence,
and limiting effects of [the alleged] symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.” (R.
25). Immediately thereafter she began explaining her reasons for finding Plaintiff’s
allegations inconsistent with the record evidence. Id. 26-27.
The ALJ found Plaintiff’s allegations regarding “her cervical degenerative disc
disease, left shoulder adhesive capsulitis, and accompanying symptoms are inconsistent
with medical imaging of the claimant’s spine and left shoulder,” and her allegations
regarding “her cervical degenerative disc disease, left shoulder adhesive capsulitis,
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morbid obesity, and accompanying symptoms are inconsistent with the claimant’s status
examination results and treatment history.” (R. 26). The ALJ found her allegations
regarding “her carpal tunnel syndrome, diabetes mellitus, restrictive lung disease,
fibromyalgia, and accompanying symptoms are inconsistent with the claimant’s medical
testing, examination results, and treatment history.” Id. The ALJ found Plaintiff’s
allegations regarding “her depressive disorder, neurocognitive disorder, anxiety disorder,
and accompanying symptoms are inconsistent with the claimant’s examination results
and treatment history;” and finally, the ALJ found, in general, Plaintiff’s allegations
regarding “her impairments and accompanying symptoms are also largely inconsistent
with her activities of daily living.” Id. 27. In each case quoted above, the ALJ supported
her finding with citation to and discussion of record evidence and the court will not quote
the ALJ’s extensive citation. Suffice it to say that the record evidence cited supports the
ALJ’s findings.
C. Analysis
Plaintiff’s argument that the ALJ improperly “cherry-picked benign findings and
emphasized improvement with treatment and medication” turns the burden of proof in
this case on its head. (Pl. Br. 16) (citing R. 26-27). It is Plaintiff’s burden to prove she
cannot work, not the ALJ’s or Commissioner’s burden to prove that she can. Thus,
where, as here, the ALJ has followed the correct legal standard to evaluate Plaintiff’s
allegations of disabling symptoms and has cited record evidence supporting her
determination to discount Plaintiff’s allegations, it becomes Plaintiff’s duty to point to
evidence compelling a contrary finding—that Plaintiff’s allegations of disabling
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symptoms must be accepted. Anything else is merely asking the court to reweigh the
evidence and substitute its judgment for that of the Commissioner.
Plaintiff argues the ALJ’s reliance on “the most basic activities of daily living” as
necessitating skills “like those required for full-time competitive employment” (Pl. Br.
16-17) (quoting R. 27), is erroneous in Plaintiff’s view because “an individual’s ability to
perform basic life activities does not translate into an ability to perform work related
activities on a full-time basis,” and the activities listed by the ALJ are “not comparable to
work-related activities within the context of a full-time work environment – five days per
week, eight hours per day.” Id. 17. Once again, Plaintiff misses the point. The ALJ did
not suggest that Plaintiff’s performance of “a wide variety of activities of daily living”
demonstrates that she is able to perform a full-time job. (R. 27). Rather, she found
Plaintiff’s ability to perform her wide variety of her activities of daily living is
inconsistent with Plaintiff’s allegations of disabling limitations. This finding is merely
the last in two-pages of inconsistencies found between Plaintiff’s allegations of disabling
symptoms and the record evidence. Plaintiff has not shown evidence which compels a
contrary finding.
III. Evaluation of Medical Opinions and Prior Administrative Medical Findings
Plaintiff offers a very brief and incomplete discussion of the legal standard
applicable to consideration of medical opinions and prior administrative medical
findings. (Pl. Br. 17). She then alleges, “The ALJ failed to support her rejection of both
Dr. Neely’s treating source opinion and Dr. Thayer’s consultative examination report.”
Id. 18. She suggests problems with the ALJ’s evaluation—sketchy criticism lacking
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detailed citation, vague references to more recent evidence, improper inferences from
activities of daily living, and mischaracterization of record evidence as largely benign
findings. Plaintiff concludes, “There is no cogent explanation for [the ALJ’s] rejection of
either opinion, and she failed to build any sort of logical bridge between the evidence and
her findings.” (Pl. Br. 18).
A. Standard for Evaluating Medical Opinions or Prior Administrative
Medical Findings
In 2017 the SSA revised its rules regarding evaluation of medical evidence
including its then-current treating physician rule regarding the evaluation of medical
opinions. The agency noted that
Courts reviewing claims under our current rules have focused more on
whether we sufficiently articulated the weight we gave treating source
opinions, rather than on whether substantial evidence supports our final
decision. As the Administrative Conference of the United States’ (ACUS)
Final Report explains, these courts, in reviewing final agency decisions, are
reweighing evidence instead of applying the substantial evidence standard
of review, which is intended to be [a] highly deferential standard to us.
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844-
01, 5,853 2017 WL 168819 (SSA Jan. 18, 2017).
It explained,
To account for the changes in the way healthcare is currently delivered, we
are adopting rules that focus more on the content of medical opinions and
less on weighing treating relationships against each other. This approach is
more consistent with current healthcare practice.
Id., 82 Fed. Reg. 5,844-01, 5,854 (emphasis added).
By moving away from assigning a specific weight to medical opinions, we
are clarifying both how we use the terms “weigh” and “weight” in final
404.1520c(a), 404.1527, 416.920c(a), and 416.927 and also clarifying that
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adjudicators should focus on how persuasive they find medical opinions
and prior administrative medical findings in final 404.1520c and 416.920c.
Our intent in these rules is to make it clear that it is never appropriate under
our rules to “credit-as-true” any medical opinion.
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844-
01, 5,858.
The regulations included a new section entitled “How we consider and articulate
medical opinions and prior administrative medical findings for claims filed on or after
March 27, 2017.” 20 C.F.R. § 404.1520c (2017). That regulation provides that the
Commissioner “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from [Plaintiff’s] medical sources.” 20 C.F.R. § 404.1520c(a). The
regulation provides that the SSA will consider each medical source’s opinions using five
factors; supportability, consistency, relationship of source to claimant, specialization, and
other factors tending to support or contradict a medical opinion or prior administrative
medical finding. 20 C.F.R. § 404.1520c(a)(c)(1-5). It provides that the most important
factors in evaluating persuasiveness are supportability and consistency. Id.
The regulation explains that the decision will articulate how persuasive the SSA
finds all medical opinions and prior administrative medical findings. 20 C.F.R.
§ 404.1520c(b). The articulation requirement applies for each source, but not for each
opinion of that source separately. 20 C.F.R. § 404.1520c(b)(1). It requires that the SSA
“will explain how we considered the supportability and consistency factors for a medical
source’s medical opinions or prior administrative medical findings in your determination
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or decision. We may, but are not required to, explain how we considered the factors in
paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how
we consider medical opinions and prior administrative medical findings in your case
record.” 20 C.F.R. § 404.1520c(b)(2). The regulation explains that when the decision-
maker finds two or more medical opinions or prior administrative medical findings are
equal in supportability and consistency “but are not exactly the same,” the decision will
articulate the other most persuasive factors from paragraphs (c)(3) through (c)(5). 20
C.F.R. § 404.1520c(b)(3). Finally, the regulation explains that the SSA is not required to
articulate how it considered evidence from non-medical sources. 20 C.F.R.
§ 404.1520c(d).
B. The ALJ’s Findings
The ALJ evaluated the prior administrative medical findings of two psychological
consultants and two medical consultants who reviewed the medical record at the initial
and reconsideration levels of review. (R. 28-29). She also evaluated the medical
opinions of Dr. Thayer in his report of a psychological consultative examination prepared
for the SSA (R. 837-42) and of Dr. Neely in a mental and in a physical RFC assessment
form prepared by him and presented to the SSA. Id. 320-26.
The ALJ found the findings of the state agency psychological consultants
persuasive because the consultants are highly qualified medical sources, their findings are
largely consistent with the record, they supported their findings with detailed
explanations citing objective evidence, and they provided detailed function-by-function
assessments of RFC. Id. 28. The ALJ found the findings of state agency medical
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consultant, Dr. Coto, unpersuasive because her findings are largely inconsistent with the
record, she did not examine the claimant, she did not support her findings with detailed
explanations, and she did not have the benefit of after-acquired evidence. (R. 28). The
ALJ found the findings of state agency medical consultant, Dr. Torres, persuasive
because he is highly qualified, his findings are consistent with the record, he supported
his findings with detailed explanations citing objective evidence, and he provided a
detailed function-by-function assessment of RFC. Id. at 28-29.
The ALJ explained her reasons for finding Dr. Thayer’s and Dr. Neely’s medical
opinions unpersuasive:
Richard Thayer, PsyD, HSP, examined the claimant on May 5, 2023 (see
11F/1-6). Following his examination, Dr. Thayer opined that the claimant:
(1) had a “marked impairment in Valerie’s current overall functional
capacity”; (2) “has fair social skills and does not have the ability to interact
with others routinely and appropriately”; (3) “has moderate impairment in
her ability to adapt to changes in the environment”; (4) “has mild
impairment for sustained concentration and persistence in simple and
repetitive tasks as evidenced by difficulty with recall of items presented
earlier”; (5) “has marked impairment retaining information and effectively
carrying out instructions that are multi-step and complex”; (6) “has marked
cognitive impairment in her cognitive ability to reason and make work
related decisions”; (7) has “marked impairment managing herself”; and (8)
“does not have the basic math skills to manage her own funds responsibly”
(see 11F/6). Dr. Thayer is an acceptable medical source and highly
qualified. However, Dr. Thayer’s opinions are largely inconsistent with the
current record. For example, Dr. Thayer’s opinion that the claimant “does
not have the ability to interact with others routinely and appropriately” is
inconsistent with the claimant’s status examination results, consultative
examination results, treatment history, and activities of daily living (see
4E/1-12; 5E/1-12; 8E/1-12; 2F/15-18; 6F/5, 9, 14; 11F/1-6; 15F/12;
17F/61; 18F/169; Testimony). Dr. Thayer had the benefit of physically
examining the claimant, but he did not support his opinions with detailed
explanations indicating which specific piece of objective evidence
supported each particular finding. Dr. Thayer also failed to provide a
complete function-by-function assessment of the claimant’s residual
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functional capacity. Furthermore, Dr. Thayer was also not able to consider
additional evidence that became available after he offered his opinions. For
these reasons, the undersigned finds Dr. Thayer’s opinions unpersuasive.
Brian S. Neely, MD, completed a medical source statement on March 29,
2024 (see 17E/1-7). Within his statement, Dr. Neely opined that the
claimant had “paragraph B” limitations ranging from “none” to “marked”
(see 17E/1-7). Dr. Neely also opined that the claimant would miss more
than three days of work per month (see 17E/4). Furthermore, Dr. Neely
opined that the claimant had significant exertional and postural limitations
(see 17E/5-7). Dr. Neely is an acceptable medical source and highly
qualified. Dr. Neely also provided a detailed function-by-function
assessment of the claimant’s residual functional capacity. However, Dr.
Neely’s opinions are largely inconsistent with the current record. For
example, Dr. Neely’s opinion that the claimant would miss more than three
days of work per month is inconsistent with the claimant’s status
examination results, consultative examination results, treatment history, and
activities of daily living (see 4E/1-12; 5E/1-12; 8E/1-12; 1F/5-7; 2F/55;
5F/1-3; 6F/18-19; 11F/1-6; 12F/19; 17F/58; 18F/16; 19F/16; Testimony).
Dr. Neely had the benefit of physically examining the claimant, but he did
not support his opinions with detailed explanations indicating which
specific piece of objective evidence supported each particular finding. In
fact, Dr. Neely’s statement appears to be little more than a checklist-style
form in which Dr. Neely offered conclusions without identifying the
objective evidence he relied upon in forming those conclusions. Dr. Neely
was also not able to consider additional evidence that became available
after he offered his opinions. For these reasons, the undersigned finds Dr.
Neely’s opinions unpersuasive.
(R. 29).
C. Analysis
Plaintiff’s argument the ALJ did not support her assessment of the medical
opinion evidence cannot stand in these circumstances. Again, she attempts to place the
burden on the Commissioner to prove she can work rather than on herself to prove she
cannot work. The ALJ explained her reasons to find the doctor’s opinions unpersuasive
and she supported those reasons by examples and citations to record evidence. Id. If
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Plaintiff finds error in those findings, it is incumbent on her to point to record evidence
demonstrating the error in the ALJ’s findings. Her suggestion that the ALJ presented
sketchy criticism lacking detailed citation, vague references to more recent evidence,
improper inferences from activities of daily living, and mischaracterization of record
evidence as largely benign findings is merely a thinly veiled attempt to get the court to
reweigh the record evidence and reach a conclusion opposite to that of the ALJ. Contrary
to Plaintiff’s conclusion that “There is no cogent explanation for [the ALJ’s] rejection of
either opinion, and she failed to build any sort of logical bridge between the evidence and
her findings” (Pl. Br. 18), the ALJ’s evaluations quoted above provide pertinent, relevant
facts and explanation in a logical progression, appealing to a reasonable mind, to support
her decision. If Plaintiff believes a different conclusion must be reached, she must point
to record evidence which compels, not merely supports, that conclusion.
IV. Plaintiff’s Remaining Arguments
A. The ALJ’s Consideration of the Effects of Fibromyalgia and Obesity
Plaintiff argues that the ALJ wrongly discounted the effects of fibromyalgia and
obesity in assessing RFC. (Pl. Br. 10-13). Regarding fibromyalgia, Plaintiff suggests it
was error for the ALJ to find fibromyalgia is a severe impairment in this case and also to
state, “gratuitously, that the record does not appear to contain formal tender point test
results.” Id. 10 (citing R. 26). She argues, “the ALJ must be mindful that pain, fatigue,
and other symptoms associated with fibromyalgia may result in limitations that should be
incorporated into the RFC.” Id. 11 (citing, without pinpoint citation, SSR 12-2p).
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Plaintiff presents case law holding that symptoms of fibromyalgia are subjective
and that negative test results or the lack of objective medical findings is not determinative
that a claimant does not have disabling fibromyalgia. (Pl. Br. 11). She argues the ALJ’s
decision does not recognize the presence of this case law. She then suggests the ALJ
erroneously discounted Dr. Neely’s opinion despite Dr. Neely’s finding Plaintiff has
“significant limitations in physical and mental functioning, due in large part to Plaintiff’s
fibromyalgia” and that her pain is consistent with fibromyalgia and cognitive deficits
secondary to long-term symptoms from fibromyalgia. Id. 11-12. She argues the ALJ
therefore erred in finding Dr. Neely “did not support his opinions with detailed
explanations indicating which specific piece of objective evidence supported each
particular finding” (R. 29) because she has “a fundamental misunderstanding of
fibromyalgia.” (Pl. Br. 12).
Regarding her morbid obesity, Plaintiff argues the ALJ provided a misleading
description of Plaintiff’s obesity by stating her body mass index (BMI) is over 40 when,
in fact, her BMI has ranged from 45 to 51. Id. She argues that even if she “is capable of
sustaining various physical functions in a doctor’s office, that does not translate into an
ability to sustain such activities five days a week, eight hours per day.” Id. She argues
that although “the ALJ included a boilerplate assertion … that she factored in the effects
of Plaintiff’s obesity (R. 22, 27), there is no indication that she did so. Coupled with her
obvious attempt to minimize the extent of Plaintiff’s obesity, the absence of any analysis
of its effects constitutes reversible error.” (Pl. Br. 13).
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Neither argument in this regard demonstrates error in the ALJ’s decision.
Although the ALJ accepted that Plaintiff’s fibromyalgia is a severe impairment in this
case, it is not error to also note the record does not contain tender point test results. SSR
12-2p presents two means of establishing a medically determinable impairment (MDI) of
fibromyalgia. 2012 WL 3104869, *2-3 (SSA July 25, 2012). One of those means
requires a test demonstrating at least 11 positive tender points on physical examination.
Thus, the ALJ’s explanation that the record does not contain a formal tender point test
clarifies which criteria were used to evaluate Plaintiff’s fibromyalgia. Id. *3.
Further, Dr. Neely’s statements, that Plaintiff has significant limitations in
physical and mental functioning, due in large part to Plaintiff’s fibromyalgia; and that her
pain is consistent with fibromyalgia and cognitive deficits secondary to long-term
symptoms from fibromyalgia, do not demonstrate error in the ALJ’s finding Dr. Neely
did not support his opinions with detailed explanations indicating which specific piece of
objective evidence supported each particular finding. Rather, they confirm that Dr. Neely
provided sweeping generalized opinions of significant limitations and alleged
consistencies with fibromyalgia symptoms without citation to objective medical evidence
from his treatment records which would support the opinions. Plaintiff’s suggestion that
objective medical evidence is not required to demonstrate disabling fibromyalgia simply
ignores SSR 12-2p which explains, “As in all claims for disability benefits, we need
objective medical evidence to establish the presence of an MDI.” Id. *3. Finally, the
court has already found the ALJ properly discounted Plaintiff’s allegations of disabling
symptoms and Plaintiff’s fibromyalgia argument does not change that analysis.
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Regarding obesity, Plaintiff does not point to record evidence compelling a
different finding. While Plaintiff argues that the ALJ did not adequately analyze her
obesity, she acknowledges the ALJ considered obesity and stated she had factored its
effects into the RFC assessed. It is Plaintiff’s burden to prove otherwise and she has
done nothing more than to hope the court would substitute its judgment for that of the
ALJ.
B. On-Task and Attendance Requirements of Full-Time Work
Plaintiff also argues that the ALJ failed to accommodate the effects of Plaintiff’s
combined mental and physical impairments on her ability to sustain full-time work
despite being off-task and/or absent. She argues: The ALJ did not account for Plaintiff’s
pain. (Pl. Br. 13). The ALJ relied “solely upon her Step Three assessment of the so-
called paragraph B criteria to find that, based solely upon Plaintiff’s mental impairments
alone, she would be able to sustain the on-task and attendance requirements of full-time
work as long as the tasks are simple.” Id. 13-14. “[T]he ALJ misrepresented the
evidence, cherry-picked, and relied upon flawed inferences.” Id. 14. The ALJ suggested
“that improvement with medication and an absence of psychiatric hospitalizations
somehow suggest that Plaintiff’s symptoms do not result in work-related limitations.” Id.
15 (citing R. 22). And “the ALJ explicitly failed to factor in the effects of Plaintiff’s
numerous physical impairments when assessing her mental RFC.” Id. In making these
assertions of error Plaintiff cites alternative facts and the opinions of Drs. Thayer and
Neely in support of her position that “[t]he ALJ failed to explain how Plaintiff would be
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able to comply with such [attendance and on-task] requirements, given her combined
deficits.” (Pl. Br. 16).
Plaintiff’s alternative view of the evidence turns the burden of proof in a Social
Security case on its head. Here, as found above, the ALJ properly found Plaintiff’s
allegations of disabling symptoms inconsistent with the record evidence and provided her
reasons for doing so. She also properly found Dr. Thayer’s and Dr. Neely’s opinions
unpersuasive and provided her reasons for doing so. Moreover, the ALJ stated that her
mental and physical RFC assessment (which includes and is intertwined with her
evaluation of Plaintiff’s alleged disabling symptoms) accommodated the mental and
physical limitations reasonably supported by the record evidence.
Plaintiff must demonstrate the error in the ALJ’s rationale or finding; the mere fact
that there is evidence which might support a contrary finding will not establish error in
the ALJ’s determination. “The possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s findings from being supported
by substantial evidence. [The court] may not displace the agency’s choice between two
fairly conflicting views, even though the court would justifiably have made a different
choice had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations,
quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm=n, 383 U.S.
607, 620 (1966). It is for this reason that Plaintiff must point to record evidence which
compels a different finding. She has not done so here.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
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Dated April 29, 2026, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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