                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 18, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANITA LOUISE VIGIL,

      Plaintiff - Appellant,

v.                                                          No. 15-2007
                                                  (D.C. No. 1:13-CV-00905-GBW)
CAROLYN W. COLVIN, Acting                                    (D. N.M.)
Commissioner of Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
                  _________________________________

      Anita Louise Vigil appeals the district court’s order denying her motion to

remand to the Commissioner to reconsider the denial of her application for disability

benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and

we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                           I.

      In Ms. Vigil’s application for disability insurance benefits, she alleged her

disability commenced December 26, 2008, when she was 45 years old. The agency

denied her application initially and on reconsideration. Following a de novo hearing,

an administrative law judge (ALJ) concluded Ms. Vigil was not disabled.

      In reaching this conclusion, the ALJ conducted a five-step sequential

evaluation process. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). At step

one, the ALJ noted Ms. Vigil had not engaged in substantial gainful activity since the

alleged onset date of her disability. At step two, the ALJ found Ms. Vigil had the

following severe impairments: “superior and posterior labral tears, and supraspinatus

tendinopathy of the right shoulder, myofascial cervicalgia, asthma, diabetes, and

migraine headaches.” Admin. R. at 14. At step three, the ALJ found Ms. Vigil did

not have an impairment or combination of impairments that met or equaled a listed

impairment.

      The ALJ then assessed Ms. Vigil’s residual functional capacity (RFC),

concluding that she could perform light work, with some additional limitations. At

step four, the ALJ determined Ms. Vigil could not perform her past relevant work as

a retail supervisor, but the ALJ found at step five that Ms. Vigil was capable of

performing other available work.

      The Appeals Council denied review of the ALJ’s decision that Ms. Vigil was

not disabled. On review, the district court upheld the ALJ’s decision, denied



                                           2
Ms. Vigil’s motion to remand, and dismissed the case with prejudice. This appeal

followed.

                                           II.

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the correct

legal standards were applied.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.

2003). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. It requires more than a scintilla, but less

than a preponderance.” Lax, 489 F.3d at 1084 (citation and internal quotation marks

omitted).

      Ms. Vigil argues that “[t]he ALJ failed to adequately consider the effects of

[her] severe migraines when formulating the RFC finding at step four.” Aplt. Br. at 9.

“[She] contends that the ALJ’s omission of headache-related limitations in the RFC

is not supported by substantial evidence.” Id.

      In evaluating the impact of subjective symptoms such as pain or fatigue on a

claimant’s RFC, the ALJ engages in a two-part process. SSR 96-7p, 1996 WL

374186, at *2 (July 2, 1996). First, the ALJ must determine whether “there are

medical signs and laboratory findings demonstrating the existence of a medically

determinable . . . impairment[] that could reasonably be expected to produce the

symptoms.” Id. at *1. Once the ALJ has determined the existence of a medically

determinable impairment, she then evaluates the claimant’s credibility concerning



                                           3
“the intensity, persistence, and functionally limiting effects of the symptoms . . . .”

Id.

      The ALJ found that Ms. Vigil’s medical impairments “could reasonably be

expected to cause the alleged symptoms; however, [Ms. Vigil’s] statements

concerning the intensity, persistence and limiting effects of these symptoms are not

credible to the extent they are inconsistent with the [RFC finding].” Admin. R. at 18.

The ALJ assessed Ms. Vigil with an RFC for light work with some additional

functional and environmental limitations, but did not include any limitations related

to her headaches. The ALJ acknowledged that Ms. Vigil experiences “some levels of

pain,” Admin. R. at 21, but ultimately determined that this impacted her ability to

work only to the extent described in the RFC assessment.

      Ms. Vigil asserts that the ALJ improperly discredited her testimony as to the

disabling or limiting effects of her headaches “solely based on a lack of clinical or

diagnostic findings.” Aplt. Br. at 12. The ALJ did note the lack of objective

evidence to support headaches to the degree or frequency alleged by Ms. Vigil, but

the ALJ also gave other reasons for her adverse credibility determination that

Ms. Vigil does not mention in her brief.

      In explaining why she found Ms. Vigil not fully credible, the ALJ noted that

Ms. Vigil “continued working for years after her initial injury and left her job

because the store closed rather than because of her disability.” Admin. R. at 21.

Although there is some disagreement among her physicians, Ms. Vigil and at least

one of her doctors believes that her headaches and migraines may be associated with

                                            4
a shoulder injury she suffered in May 1995. The record reflects that she complained

of a severe headache as far back as March 2006, and she repeatedly complained of

headaches and migraines throughout 2008. By Ms. Vigil’s own account, she

frequently suffered from headache pain before she stopped working, yet she

continued to work. She testified that she only stopped working because her store

closed and she lost her job. The ALJ properly concluded that these circumstances

cast doubt on Ms. Vigil’s credibility. See Cowan v. Astrue, 552 F.3d 1182, 1191

(10th Cir. 2008) (noting that a claimant’s ability to work in the past despite his

impairments suggests his conditions would not currently prevent him from working

and casts doubt on his credibility).

      The ALJ also noted that Ms. Vigil “collected unemployment benefits and was

searching for work, while at the same time maintaining that she is unable to work.”

Admin. R. at 21. Ms. Vigil alleged in her disability application that she became

disabled as of December 26, 2008—when her store closed and she was laid off from

her job. She testified, however, that she was looking for jobs while she was receiving

unemployment benefits, but she was unable to find a job. She estimated that she

drew unemployment benefits for two years. Yet during this timeframe in 2009 and

2010, Ms. Vigil continued to complain that she was suffering from painful headaches

and migraines. The fact that Ms. Vigil actively sought employment while

maintaining she suffered from disabling pain is a legitimate ground for the ALJ to

discount her credibility. Cf. Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir.



                                            5
2013) (observing that claimant’s interest in returning to work during the period when

she was allegedly disabled supported ALJ’s adverse credibility finding).

      Finally, the ALJ noted that Ms. Vigil made inconsistent statements about the

side effects of her medication. She testified at the hearing “that she takes numerous

prescription medications for neck and shoulder pains, migraine headaches, as well as

to help her sleep.” Admin. R. at 19. Although the medications provide some relief,

she said they “make her tired and dizzy ‘loopy’ like, making it difficult to

concentrate.” Id. But as the ALJ correctly noted, the record reflects she told her

doctors that she did not have any side effects from her medications, see, e.g., id.

at 660, 662. “One strong indication of the credibility of an individual’s statements is

their consistency, both internally and with other information in the case record.”

SSR 96-7p, at *5. The ALJ properly relied on Ms. Vigil’s inconsistent statements

about the side effects of her medication when making her adverse credibility

determination.

      “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.”

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal quotation marks

omitted). The ALJ based her credibility determination on appropriate considerations

that are supported with substantial evidence in the record. Accordingly, the ALJ did

not err in assessing Ms. Vigil’s RFC.




                                           6
      We affirm the district court’s order denying the motion to remand and

dismissing the case.

                                      Entered for the Court
                                      Bobby R. Baldock
                                      Circuit Judge




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