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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11234 Non-Argument Calendar ________________________
D.C. Docket No. 8:15-cv-01882-JDW-MAP
ANDREA BULEY,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 2, 2018)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-11234 Date Filed: 07/02/2018 Page: 2 of 20
Andrea Buley appeals the district court’s order affirming the Commissioner
of the Social Security Administration’s decision to deny her application for
supplemental security income benefits. On appeal Buley argues that the
administrative law judge (“ALJ”) erred in assessing her residual functional
capacity. After careful consideration, we affirm the district court’s judgment in
favor of the Commissioner.
I. FACTUAL BACKGROUND
In January 2014, Buley applied for benefits on the basis that she was unable
to work due to back pain, dizziness, vision problems, and migraines. After her
application was denied, Buley requested and received a hearing before an ALJ.
A. The ALJ Hearing
At the hearing, the ALJ heard testimony from Buley and reviewed her
medical records.1 Buley described the limitations she experienced as a result of
her back pain, dizziness, vision problems, and migraines. She testified that she
owned and continued to operate a tattoo establishment after filing for disability
benefits. Due to her limitations, she was able to work only about five hours a day.
Buley described how her vision problems made it difficult to work.
Although she wore reading glasses while tattooing, she had problems tattooing
smaller designs and seeing contrast between ink and skin. Her vision problems 1 The ALJ also heard testimony from a vocational expert. This testimony is irrelevant to this appeal.
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also made her sensitive to light. Buley explained that she suffered from daily
headaches that contributed to her vision problems. When she had a headache, her
vision would become blurry, and she sometimes was unable to apply tattoos. But
when she took her headache medication, the headache would last only about 15
minutes. Buley also testified that she experienced dizziness when the weather was
bad or when she had to focus and that the dizziness made her feel like she had to
vomit.
Buley also described how her neck and back pain affected her ability to
work. She described experiencing constant back pain that radiated down her right
leg, along with constant neck pain. Buley stated that she was unable to stand for
long periods due to the pain. She had previously been prescribed gabapentin but
stopped taking the medication because it gave her a rash. The ALJ asked Buley
whether she was in pain at the hearing, and she answered that she was not in much
pain that day because she had taken medication, including gabapentin.
In addition to Buley’s testimony, the ALJ also considered statements that
Buley had previously given about her physical condition. In a pain questionnaire,
Buley reported experiencing pain in her head, neck, and joints. She described her
pain level as 9/10 or 10/10 all the time and stated that medication did not relieve
her pain and made her nauseous. She also stated that she experienced migraines,
which lasted for at least four days.
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The ALJ also reviewed medical evidence regarding Buley’s physical
impairments. The medical evidence included records from several providers who
treated Buley.
Kim Powers treated Buley after she was in an automobile accident in 2005.
His medical records thus relate to a time period several years before Buley filed for
disability. Powers diagnosed Buley with posttraumatic myofascial pain syndrome
of the cervical, thoracic, and lumbrosacral spine and noted that she experienced
recurrent dizziness and headaches. After Buley completed treatment, Powers
recommended that she avoid lifting more than five to ten pounds and excessive
bending, twisting, turning, or stooping. He also advised her to be cautious during
dizzy spells.
Hoa Le treated Buley for her headaches and neck and back pain in 2014,
around the time that Buley applied for disability benefits. During this period, Le
saw Buley approximately once a month. Buley reported experiencing back and
neck pain and headaches. Le’s treatment notes reflect that at multiple
appointments Buley denied experiencing painful joints, nausea, dizziness, or
blurred vision. Le prescribed Fioricet to treat Buley’s migraines and hydrocodone,
an opioid, to treat her back pain. Buley reported no side effects from either
medication.
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Le’s notes from the appointments during this period contain contradictory
findings about Buley’s neck and lumbar spine. At each appointment, Le noted that
that Buley’s neck was supple with a full range of motion and also that her neck
was tender with spasms and decreased range of motion. Le noted at one
appointment that Buley’s lumbar spine showed no tenderness, spasms, or
decreased range of motion and also that it did show tenderness, spasms, and a
decreased range of motion. There is nothing in Le’s notes explaining these
contradictory findings.
The medical evidence also included a March 2014 letter from Mitchell Petit,
an optometrist who treated Buley. Petit explained that Buley had undergone
several vision surgeries and would soon be having another surgery on her left eye
to improve her near vision. Petit noted that Buley’s vision would be affected only
while she healed from surgery.
Deborah Kim treated Buley for a skin lesion on her nose in 2014. Kim’s
notes reflect that Buley had a supple neck; a normal musculoskeletal system; and
normal balance, gait, and stance. Kim also noted that Buley denied experiencing
headaches, eye symptoms, or dizziness.
In September 2014, Kim wrote a letter assessing Buley’s physical
limitations. Kim reported that Buley experienced persistent neck and back pain
due to her herniated discs, as well as persistent headaches. Kim advised that Buley
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should not bend her neck for long periods of time or keep her neck still for more
than 20 minutes. Kim also recommended that Buley lift no more than ten pounds;
avoid stooping, bending, or twisting; and use a cane to walk. Kim noted that Buley
had not received additional medical care because she was not working and had no
health insurance. As a result, Kim was unable to get an updated MRI of Buley’s
neck and back 2 or refer her to a dermatologist.
Oswald Williams treated Buley on a routine basis. Buley complained to
Williams that she felt nauseous, faint, and weak with joint pain, muscle ache, and
neck pain. Williams noted that Buley’s neck was normal.
The ALJ also reviewed records from two providers who examined, but did
not treat, Buley. These providers were Robert Shefsky, a physician, and Martin
Rosenblum, an ophthalmologist.
Shefksy examined Buley in April 2014; his examination concerned her neck
and back pain and her vision problems. Regarding Buley’s neck and back,
Shefsky’s findings were generally unremarkable. He noted that Buley reported
experiencing neck and back pain that radiated down her arms and legs. But
Shefsky’s examination showed that she had a normal range of motion throughout
her musculoskeletal system, full grip strength bilaterally, and intact hand and
2 The medical evidence showed that Buley had an MRI of her spine in February 2013. It is unclear from the record whether Kim reviewed this MRI taken approximately 18 months earlier.
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finger dexterity. Her neck was supple, her joints were stable and nontender, and
she had experienced no muscle atrophy. She displayed no trigger points. Her gait
was mildly antalgic but her stance was normal. Shefsky noted that Buley was not
using a cane, was able to walk on her heels and toes, and could rise from a chair
without difficulty. She also could perform a full squat and get on and off the
examination table unassisted. Shefsky reported that Buley’s x-rays showed
moderate degenerative osteoarthritis in her cervical spine and mild to moderate
osteoarthritis in her lumbar spine. Shefky diagnosed her with neck and back pain
by history as well as fibromyalgia by history and opined that her prognosis was
stable.
Shefky also examined Buley’s vision. He documented 20/25 vision in
Buley’s right eye, 20/70 vision in her left eye, and 20/25 vision in both eyes. He
diagnosed her with a left eye cataract and opined that her vision prognosis was
Rosenblum examined Buley’s vision in November 2014. He noted that she
had a corneal scar, which caused her headaches and made it difficult for her to
drive or work as a tattoo artist. Rosenblum found that her best corrected visual
acuity for distance was 20/25 in the right eye and 20/80 in the left, with 20/20 in
each eye for near vision. He reported that visual field testing results were normal.
Although Buley was visually compromised, Rosenblum concluded that she was not
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legally blind, but she was unable to perform tasks that required “good binocularity
and good depth perception.” Doc. 14-14 at 32.3
The record also contained an opinion from State agency medical consultant
Dr. Sunita Patel, who reviewed Buley’s medical records but neither treated nor
examined her. Based on his review of the file, Patel opined that Buley could
perform a range of light work with certain exertional and visual limitations. The
exertional limitations included that Buley could only stand or walk for about six
hours a day and sit for about six hours a day. Patel found that Buley had limited
depth perception in her left eye but no limitations in near acuity, far acuity,
accommodation, color vision, or field of vision.
B. The ALJ’s Decision
After considering the evidence, the ALJ issued a written decision concluding
that Buley was not disabled. In reaching this conclusion, the ALJ applied the five-
step sequential evaluation process.
At the first step, the ALJ concluded that Buley had not engaged in
substantial gainful activity since the application date. At the second step, the ALJ
concluded that she had severe impairments. At third step, the ALJ found that
Buley did not have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment.
3 Citations to “Doc. #” refer to the numbered entries on the district court’s docket.
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The ALJ then assessed Buley’s residual functional capacity, finding that she
was able to perform light work with certain limitations. These limitations included
that Buley should: have the freedom to alternate between sitting and standing
positions every 30 to 60 minutes; never climb ladders, ropes, or scaffolds, though
she could occasionally climb ramps and stairs and frequently balance, stop, kneel,
crouch, and crawl; avoid concentrated exposure to direct sunlight, extreme cold,
wetness, humidity, and excessive noise; and avoid exposure to hazardous
machinery and unprotected heights. In addition, she could perform work that
required no more than frequent binocular visual acuity or depth perception. In
making this assessment, the ALJ stated that he had considered all of Buley’s
symptoms and the extent to which the symptoms could reasonably be accepted as
consistent with the objective medical evidence and other evidence.
In assessing residual functional capacity, the ALJ found that Buley’s
statements concerning the intensity, persistence, and limiting effects of her
symptoms were not entirely credible. The ALJ concluded that these statements
were not supported by medical records, which showed that Buley received
conservative treatment and exhibited few functional deficits on actual clinical
examination. They also were inconsistent with the ALJ’s observations of Buley at
the hearing where she showed no signs of discomfort or pain and admitted that
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pain medication helped her. The ALJ also found Buley’s claims not credible
because she had continued to work after the alleged onset date.4
The ALJ also gave little to no weight to Kim’s opinions set forth in the
September 2014 letter. The ALJ found the opinions were inconsistent with the
course of care administered by Kim and the other treating providers. The ALJ also
determined that Kim’s opinion that Buley should use a cane was inconsistent with
her appearance at the hearing where she used no cane. The ALJ further discussed
and rejected Kim’s suggestion that Buley did not have extensive medical records
because she made no income and thus could not afford to purchase health
insurance. Because Buley had in fact been working, the ALJ found that this
discrepancy suggested Kim was relying, at least in part, on Buley’s subjective
complaints, instead of objective evidence.
At step four, the ALJ concluded that Buley had no past relevant work. At
step five, the ALJ concluded that there were a significant number of jobs in the
national economy that Buley could perform given her age, education, and residual
functional capacity. Accordingly, the ALJ found that Buley was not disabled.5
4 In the context of discussing how Buley had continued to work, the ALJ noted that in previous years she had sometimes paid herself a salary from the tattoo establishment, which she owned, and other times had taken a distribution as the owner of the business. The ALJ found that it was unclear whether Buley had continued to take such distributions from the company during the period she claimed to be disabled. 5 Buley requested that the Appeals Council review the ALJ’s decision, but the Appeals Council denied her request for review.
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C. District Court Proceedings
Buley then filed an action in federal district court, asking the court to reverse
the Commissioner’s decision. The magistrate judge issued a report and
recommendation that the district court affirm the Commissioner’s decision and
dismiss Buley’s complaint. Buley objected. The district court overruled Buley’s
objection, adopted the magistrate judge’s recommendation, and affirmed the
Commissioner’s decision. This is Buley’s appeal.
II. STANDARD OF REVIEW
When, as here, an ALJ denies benefits and the Appeals Council denies
review, we review the ALJ’s decision as the Commissioner’s final decision. See
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review the
Commissioner’s decision to determine whether it is supported by substantial
evidence, but we review de novo the legal principles upon which the decision is
based. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “Even if we
find that the evidence preponderates against the [Commissioner’s] decision, we
must affirm if the decision is supported by substantial evidence.” Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). Substantial evidence refers to
“such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Moore, 405 F.3d at 1211. Our limited review precludes us
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from “deciding the facts anew, making credibility determinations, or re-weighing
the evidence.” Id.
III. LEGAL ANALYSIS
A disabled individual may be eligible for social security income benefits.
42 U.S.C. § 1382(a)(1)-(2). To determine whether a claimant is “disabled,” an
ALJ applies a sequential evaluation process to determine whether the claimant:
(1) is engaging in substantial gainful activity; (2) has a severe and medically
determinable impairment or combination of impairments; (3) has an impairment or
combination of impairments that satisfies the criteria of a “listing”; (4) can perform
his or her past relevant work in light of his or her residual functional capacity; and
(5) can adjust to other work in light of his or her residual functional capacity, age,
education, and work experience. 20 C.F.R. § 416.920(a)(4).
On appeal, Buley challenges the ALJ’s assessment of her residual functional
capacity. First, she contends that the ALJ erred in assessing her residual functional
capacity with regard to vision because the ALJ should have given great weight to
Rosenblum’s opinion that she could not perform tasks that required good
binocularity and depth perception. Second, she argues that the ALJ erred in
giving little to no weight to Kim’s opinions regarding Buley’s physical limitations.
Third, she asserts that the ALJ erred in finding not credible her testimony about the
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intensity, persistence, and limiting effects of her symptoms. We consider these
arguments in turn.
A. The ALJ Did Not Err in Assessing Buley’s Residual Functional Capacity Regarding Her Vision.
We begin by considering Buley’s argument that the ALJ erred in assessing
her residual functional capacity regarding her vision. She claims that the ALJ
erred in two ways: by failing to state what weight he assigned to Rosenblum’s
opinion and by failing to give great weight to Rosenblum’s opinion that Buley was
unable to perform tasks that required good binocularity or depth perceptions. We
discern no error.
An ALJ must evaluate every medical opinion received and assign weight to
each opinion. See 20 C.F.R. § 416.927(c); Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987). But an ALJ is not required to use particular phrases or
formulations as long as a reviewing court can determine what statutory and
regulatory requirements he or she applied. Jamison v. Bowen, 814 F.2d 585, 588-
89 (11th Cir. 1987). In general, an ALJ must give the medical opinions of a
treating source “substantial or considerable weight unless good cause is shown to
the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (internal
quotation marks omitted). Good cause exists when: (1) the opinion was not
bolstered by the evidence; (2) the evidence supported a contrary finding; or (3) the
opinion was conclusory or inconsistent with the doctor’s own medical records. Id. 13 Case: 17-11234 Date Filed: 07/02/2018 Page: 14 of 20
But an opinion from a treating source on an issue that is reserved to the
Commissioner is not treated as a medical opinion. Although an ALJ will consider
a treating source’s opinion on the claimant’s residual functional capacity, the final
responsibility for deciding this issue is reserved to the Commissioner. See
20 C.F.R. § 416.927(d)(2). Accordingly, a treating source’s opinion on a
claimant’s residual functional capacity is given no special significance. Id.
§ 416.927(d)(3).
First, Buley contends that the ALJ erred by failing to state what weight he
assigned to Rosenblum’s opinion. We conclude that the ALJ adequately discussed
this opinion. The ALJ agreed with Rosenblum’s opinion that Buley was visually
compromised but not legally blind. Although the ALJ never expressly stated that
he gave great weight to Rosenblum’s opinion, he obviously did because he agreed
with its conclusion. See Jamison, 814 F.2d at 588-89 (recognizing that we do not
“require the use of particular phrases of formulations” by an ALJ).
Second, Buley asserts that the ALJ erred because his determination that
Buley remained capable of work requiring no more than “frequent” binocular
visual acuity or depth perception was inconsistent with Rosenblum’s opinion that
she could not perform work that required “good” binocularity and depth
perception. This argument rests on the premise that Rosenblum’s opinion—that
Buley could not perform tasks requiring good binocularity or depth perception—
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meant that she lacked the capacity to perform jobs that required frequent binocular
visual acuity or depth perception. But we need not decide whether the ALJ’s
residual functional capacity assessment was consistent with Rosenblum’s opinion
because the Commissioner was not required to give any special significance to
Rosenblum’s assessment of Buley’s residual functional capacity; instead, under the
relevant regulations, that determination is reserved to the Commissioner.
See 20 C.F.R. § 416.927(d)(2)-(3).
Once we set aside Rosenblum’s assessment of Buley’s residual functional
capacity, it is clear that substantial evidence supported the ALJ’s conclusion that
Buley could perform tasks that require no more than frequent binocular visual
acuity or depth perception. The ALJ’s position is consistent with the remainder of
Rosenblum’s opinion and Shefsky’s opinion. We thus cannot say that the ALJ
erred in assessing Buley’s residual functional capacity with respect to her vision.
B. The ALJ Did Not Err in Assigning Little Weight to Kim’s Opinions.
Buley next argues that the ALJ erred in giving little to no weight to Kim’s
opinions regarding Buley’s physical limitations. Kim opined that Buley had
certain exertional limitations—that she should not bend her neck for long periods
of time, keep her neck still for more than 20 minutes, or lift ten or more pounds;
she should avoid stooping, bending or twisting; and she should use a cane. But the
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ALJ was entitled to reject these opinions as inconsistent with the other medical
evidence in the record.
Although Kim was a treating physician whose opinions normally would be
entitled to substantial weight, see Lewis, 125 F.3d at 1440, the ALJ found good
cause to give Kim’s opinions little or no weight because they contradicted the
records from Le, Shefsky, and Kim. Substantial evidence supports the ALJ’s
conclusion. For example, Le’s treatment notes can be interpreted as showing that
Buley’s neck had a full range of motion and was supple and not stiff, and her
lumbar spine had a full range of motion with no tenderness or spasms. Le’s
treatment notes also reflect that at multiple appointments Buley denied
experiencing painful joints, nausea, dizziness, or blurred vision. These mild
findings are consistent with Le’s conservative course of treatment in which he used
only medication to treat Buley’s pain, and she reported no side effects. The
evidence from Shefsky’s examination also contradicts Kim’s opinions. Shefksy
observed that Buley’s neck was supple, she had a full range of motion, her joints
were stable and nontender, and she had no trigger points. Although Buley had a
mildly antalgic gait, Shefsky observed that she could otherwise walk on her heels
and toes without difficulty. Furthermore, Kim’s own records indicate that Buley’s
neck was supple, and her musculoskeletal system was normal. Although Kim
opined in the letter that Buley should use a cane, Kim noted in records from the
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same time period that she had a normal balance, gait, and stance. Because the
medical evidence from Le, Shefsky, and Kim herself supports findings contrary to
the extensive limitations Kim identified in her letter, we conclude that the ALJ had
good cause to give little weight to Kim’s opinions.
In assigning Kim’s opinions little weight, the ALJ also observed that Kim
said Buley had not received extensive medical treatment because she had no
income and could not afford health insurance. The ALJ noted, however, that
Buley had some income: she continued to work at her tattoo establishment after
filing for disability. To the ALJ, this discrepancy suggested that Kim was relying
in part on Buley’s subjective reports instead of objective findings. Buley
challenges specifically this aspect of the ALJ’s decision. But because there was
evidence that Buley continued to earn some income, which was inconsistent with
Kim’s statement, the ALJ’s decision to afford little to no weight to Kim’s opinions,
even though she treated Buley, was not erroneous.
C. The ALJ Did Not Err in Finding Buley Not Credible.
Finally, Buley challenges the ALJ’s decision not to credit her statements
about her pain and other symptoms. The ALJ found that Buley was not credible
because her testimony was inconsistent with her treatment records, she was able to
work after the alleged onset of disability date, and the ALJ’s observations of Buley
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at the hearing were inconsistent with what she reported. Substantial evidence
supports the ALJ’s adverse credibility determination.
When a claimant attempts to establish a disability through her own
testimony concerning her pain, we require “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart,
284 F.3d 1219, 1225 (11th Cir. 2002). If the record shows that the claimant has a
medically determinable impairment that could reasonably be expected to produce
her symptoms, the ALJ must evaluate the intensity and persistence of the
symptoms to determine how they limit the claimant’s capacity for work. 20 C.F.R.
§ 416.929(c)(1). In assessing such symptoms and their effects, the ALJ must
consider: the objective medical evidence; the claimant’s daily activities; the
location, duration, frequency, and intensity of the claimant’s pain; precipitating and
aggravating factors; the type, dosage, effectiveness, and side effects of medication
taken to relieve the pain; treatment, other than medication, for relief of the pain;
any other measure used to relieve the pain; and any other factors concerning
functional limitations and restrictions due to the pain. Id. § 416.929(c)(2)-(3).
If the ALJ determines that the claimant’s statements about her symptoms are
not credible, the ALJ must “provide[] a detailed factual basis for [the] credibility
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determination,” which must be supported by substantial evidence. Moore,
405 F.3d at 1212. The ALJ may “consider[] the claimant’s appearance and
demeanor during the hearing.” Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir.
1985). But the ALJ “must not impose his observations in lieu of a consideration of
the medical evidence presented.” Id.
Substantial evidence supports the ALJ’s conclusion that Buley’s medical
records did not support her subjective complaints of pain. Buley claimed that she
was unable to work due to her back pain, neck pain, headaches, and vision
problems. Although Buley complained to her medical providers about neck and
back pain, the providers noted no deficits in strength or sensation. And, as the ALJ
noted, Buley’s providers followed conservative treatment plans relying only on
medication. Buley argues that the ALJ improperly substituted his opinion for that
of a physician in describing her treatment, but the ALJ was permitted to consider
the type of treatment Buley received in assessing the credibility of her subjective
complaints of pain. See 20 C.F.R. § 416.929(c)(3)(iv)-(v). Buley further
contended that the medication made her nauseous and that she experienced side
effects. But the treatment records reflect that the medication effectively treated her
pain without side effects.
In making the adverse credibility determination, the ALJ also considered
that Buley continued to work after the onset date of her disability. Because
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substantial evidence supports the ALJ’s finding that Buley continued to work
despite claiming that her disabling conditions left her unable to work, we cannot
say that the ALJ erred in finding her not credible. 6
The ALJ also found Buley not credible based upon his observations of her at
the hearing, noting that she showed no symptoms of pain, was able to read
documents (while wearing her corrective lenses), and needed no cane. The ALJ
was permitted to consider his observations at Buley’s demeanor at the hearing as
one of the many factors that called Buley’s credibility into question. See Norris,
760 F.2d at 1158.
IV. CONCLUSION
For the reasons set forth above, we affirm the Commissioner’s decision to
deny benefits.
AFFIRMED.
6 In discussing Buley’s work history, the ALJ observed that Buley’s tax returns showed in some years Buley paid herself a salary and in other years paid herself a distribution from the company, in lieu of a salary. Buley argues at length why she was permitted to pay herself a distribution in lieu of a salary. But Buley misses the point. In making the adverse credibility determination, the ALJ focused on the fact that Buley had continued to work after claiming to be disabled. Because substantial evidence supported the ALJ’s conclusion, the ALJ did not err in making the adverse credibility determination.