UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

TERESA ANN PICKUP, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of the Social Security 

Administration, 

 Defendant - Appellee. 

No. 14-5095 

(D.C. No. 4:13-CV-00210-JED-PJC) 

(N.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO, and MATHESON, Circuit Judges. 

 

 Teresa Pickup appeals a district court order upholding the denial of her claim 

for social security disability benefits. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant 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 

ordered 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

 An Administrative Law Judge (“ALJ”) found Pickup not credible and therefore 

denied her benefits at steps four and five of the evaluative process for disability 

determinations. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). On the 

first three steps, the ALJ concluded that Pickup had not engaged in substantial 

gainful activity since March 16, 2010, the onset date of her degenerative disc disease, 

an impairment which is not equal to any presumptively disabling impairment. On 

step four, the ALJ found that Pickup had the residual functional capacity (“RFC”) for 

light work, “limited to occasional crouching or stooping and . . . never climb[ing] 

ladders/ropes/scaffolds or reach[ing] overhead.” The ALJ “d[id] not discount all of 

[her] complaints,” yet nevertheless concluded that her claims about the “intensity, 

persistence and limiting effects of [her] symptoms [we]re not credible.” Pickup 

could do her past work as a cashier, the ALJ found, as well as other work in the 

national economy. Accordingly, the ALJ found her not disabled on both steps four 

and five. 

 The Appeals Council denied review of the ALJ’s decision, making that 

decision the Commissioner’s final decision for purposes of judicial review. Krauser 

v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Pickup filed suit. The district court 

adopted a magistrate judge’s report and recommendation concluding that two of the 

reasons for the ALJ’s credibility determination were unfounded, but affirming the 

denial of benefits based on other reasons. Pickup timely appealed. 

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II 

 “We independently review the [ALJ’s] decision to determine whether it is free 

from legal error and supported by substantial evidence . . . .” Id. at 1326. 

“Substantial evidence is such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Frantz v. Astrue, 509 F.3d 1299, 1300 (10th Cir. 

2007) (quotations omitted). Although we agree with the district court that two 

aspects of the ALJ’s credibility determination are mistaken, “we conclude that the 

balance of the ALJ’s credibility analysis is supported by substantial evidence in the 

record.” Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004).1

 

We begin by noting two problems with the ALJ’s rationale for finding Pickup 

not credible. The ALJ stated that Pickup’s “treatment has been essentially routine 

and/or conservative in nature.” Although her medical treatment was initially 

conservative after a 2008 workplace injury, over time conservative measures failed 

and extensive treatment, including a daily narcotic pain regimen, became necessary. 

The ALJ’s conclusion about this issue is thus not supported by substantial evidence. 

 1

 Pickup contends that courts may not affirm an ALJ’s credibility finding while 

rejecting some of the ALJ’s reasons for that finding. She purports to quote Huston v. 

Bowen, 838 F.2d 1125, 1132 n.7 (10th Cir. 1988), as stating that “[w]hen several 

factors relied upon to discount a claimant’s credibility are unsupported or 

contradicted by the record, that determination cannot stand.” No such statement 

appears in Huston. And the older, unpublished cases she cites are contrary to our 

authoritative decision in Branum as well as numerous more recent unpublished cases. 

See, e.g., Butler v. Astrue, 410 F. App’x 137, 139 (10th Cir. 2011) (unpublished); 

Roybal v. Astrue, 224 F. App’x 843, 848 (10th Cir. 2007) (unpublished); Norris v. 

Barnhart, 152 F. App’x 698, 704 (10th Cir. 2005) (unpublished). 

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Further, the ALJ stated that the reason Pickup was terminated from her last job 

as a certified nursing assistant was “not related to the allegedly disabling 

impairment(s).” However, this finding is belied by a letter from Pickup’s employer 

stating that the cause for termination was her “inability to perform [her] duties, as 

evidenced by the medical statement received from [her] physician dated February 18, 

2010, which states [she] ha[s] permanent restrictions of no lifting or carrying over 30 

pounds, no pushing/pulling over 60 pounds, and no bending, stooping, twisting.” 

Although these restrictions do not prevent Pickup from performing other sorts of 

light work, the ALJ’s conclusion that Pickup’s termination was unrelated to her 

impairment is clearly not supported by substantial evidence in the record. 

But the ALJ’s conclusion that Pickup is not credible because she received 

unemployment benefits after her termination is entirely proper. The ALJ explained: 

[Pickup] testified she had received unemployment benefits beginning in 

March 2010 . . . through September 3, 2011. In order to receive 

unemployment compensation, the person must be looking for future 

employment and be physically able to return to work. Therefore I find 

that the unemployment compensation [Pickup] received through 

September 2011 would show that she received benefits in good faith and 

reported she was able to work during that time period. 

(citations omitted). There is an obvious inconsistency between claiming an ability to 

work for purposes of obtaining unemployment compensation and claiming an 

inability to work for purposes of obtaining social security benefits. The ALJ was 

thus entitled to rely on Pickup’s receipt of unemployment benefits as a reason 

weighing against the credibility of her claim of a completely disabling impairment. 

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Other aspects of the ALJ’s credibility determination concern the activities 

Pickup is capable of performing while on medication and the relative effectiveness of 

medication in stabilizing her pain levels. The ALJ noted that Pickup “has been 

prescribed and has taken appropriate medications for the alleged impairments, which 

weighs in [her] favor, but the medical records reveal that the medications have been 

relatively effective in controlling [her] symptoms.” Pickup contends it was improper 

for the ALJ to hold her medication use against her. However, she fails to appreciate 

the distinction between two ways that medication use can affect a credibility analysis. 

As the ALJ acknowledged, medication use can bolster credibility by showing that a 

claimant is willing to seek relief for her impairments. See Keyes-Zachary v. Astrue, 

695 F.3d 1156, 1167 (10th Cir. 2012). Yet the purpose of a credibility analysis is to 

assess the credibility of the claimant’s allegations of impairment. If medication 

effectively reduces the operative symptoms, that fact can weigh against the claimant. 

See id. at 1171 (holding that the ALJ did not err in “reject[ing] [the claimant’s] 

complaint of disabling pain because of lack of intensity” where “medical reports 

reveal[ed] that medications have been relatively effective, when taken as prescribed” 

(emphasis and quotations omitted)); accord Hackett v. Barnhart, 395 F.3d 1168, 1173 

(10th Cir. 2005); White v. Barnhart, 287 F.3d 903, 909-10 (10th Cir. 2002).2 

 2

 Pickup claims that Hamlin v. Barnhart, 365 F.3d 1208 (10th Cir. 2004) 

supports her contrary position. However, Hamlin merely noted that a claimant’s 

credibility was “not necessarily undermine[d]” where treatment “may have been 

effective in alleviating some of [the claimant’s] symptoms.” Id. at 1221-22. And in 

(continued) 

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Moreover, the ALJ reasoned that Pickup’s “allegedly limited daily activities 

cannot be objectively verified.” Pickup contends that objective verification of daily 

activities is not required. However, we have specifically held that the lack of 

objective verification about a claimant’s allegedly limited daily activities is a proper 

factor in a credibility analysis. See Keyes-Zachary, 695 F.3d at 1168. 

Finally, the ALJ reasoned that Pickup’s claims of limited daily activities 

contradict what she told her doctor she was capable of doing and are therefore not 

credible. We agree with the ALJ that substantial evidence in the record supports the 

conclusion that Pickup’s testimony in the social security proceeding contradicts what 

she told her doctor,3

 and that she is therefore not credible.4

 

Hamlin, the plaintiff was hospitalized for severe pain while taking pain medication. 

Id. at 1221. Hamlin’s qualified holding and its case-specific application are not 

inconsistent with the above authorities or their application to the circumstances of 

this case. 

3

 Pickup contends the ALJ did not rely on this contradiction in her credibility 

analysis, but a commonsense reading of the ALJ’s decision belies this contention. 

4

 In her reply brief, Pickup challenges for the first time the ALJ’s findings that 

the medical evidence supports the conclusion that she can function at a higher level 

than she claimed in the social security proceeding. Because Pickup did not raise this 

argument until her reply brief on appeal, we deem it waived. See Martin K. Eby 

Constr. Co. v. OneBeacon Ins. Co., 777 F.3d 1132, 1142 (10th Cir. 2015). 

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III 

 Pickup has shown that part of the ALJ’s credibility analysis was incorrect. Yet 

because that analysis was, on balance, proper and supported by substantial evidence, 

the judgment of the district court is AFFIRMED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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