Wahpekeche v. Colvin , 640 F. App'x 781 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ILLA WAHPEKECHE,
Plaintiff - Appellant,
No. 15-6060
v. (D.C. No. 5:14-CV-00083-L)
(W.D. Okla.)
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Illa Wahpekeche appeals from a district court order affirming the
Commissioner’s decision denying her application for Social Security disability
benefits. Ms. Wahpekeche applied for these benefits in 2012, alleging disability due
to back problems. The agency denied her application initially and on
reconsideration. Ms. Wahpekeche then sought review by an administrative law judge
(ALJ).
*
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 This order and judgment is not binding precedent,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.
The ALJ held a hearing at which Ms. Wahpekeche testified. In a written
decision, the ALJ found that she was severely impaired by degenerative disc and
joint disease, obesity, and asthma, but that these impairments did not meet or
medically equal a listed impairment. She further determined that given her
impairments, Ms. Wahpekeche retained the residual functional capacity (RFC)
to perform light work . . . except [she] could occasionally lift/carry 20
pounds and frequently lift/carry 10 pounds. She could stand/walk 2 hours
out of an 8-hour workday, and sit 6 hours out of an 8-hour workday. She
could stand/walk a maximum of 1 hour at a time, sit a maximum of 1 hour
at a time, and would need to change positions at [her] workstation and stand
without breaks. She could not climb ladders, ropes, or scaffolds, or crawl.
She occasionally could climb stairs, balance, stoop, kneel, or crouch, and
frequently reach. She must avoid concentrated exposure to fumes, odors,
dusts, gases, poor ventilation, unprotected heights, and dangerous
machinery.
Aplt. App., Vol. I at 34.
With this RFC, the ALJ found that Ms. Wahpekeche could return to her past
relevant work as a PBX operator, and was therefore not disabled. The Appeals
Council denied review, making the ALJ’s decision the Commissioner’s final
decision.
“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.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
We consider only those issues adequately preserved in the district court, Wall v.
2
Astrue, 561 F.3d 1048, 1066-67 (10th Cir. 2009), and adequately briefed for our
review, Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
Ms. Wahpekeche first challenges the ALJ’s credibility analysis. She argues
that the ALJ failed to follow the appropriate procedure in analyzing her credibility.
As a result, she claims, the ALJ’s conclusions concerning the disabling effects of her
symptoms, including her complaints of disabling pain, are unsupported by substantial
evidence.
We give particular deference to an ALJ’s credibility findings. White v.
Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). “Not only does an ALJ see far more
social security cases than do appellate judges, he or she is uniquely able to observe
the demeanor and gauge the physical abilities of the claimant in a direct and
unmediated fashion.” Id. That said, an ALJ’s decision “must contain specific
reasons for the finding on credibility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the [ALJ] gave to the individual’s statements and
the reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996).
When evaluating pain or other allegedly disabling symptoms, an ALJ must
“consider (1) whether Claimant established a pain-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, Claimant’s pain
is in fact disabling.” Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004)
3
(internal quotation marks omitted). The evidence the ALJ must consider includes the
claimant’s attempts to find relief, regular use of crutches or a cane, regular contacts
with a doctor, daily activities, and the dosage, effectiveness, and side effects of any
medication. Keyes-Zachary, 695 F.3d at 1167; see also SSR 96–7p, 1996 WL
374186, at *3 (listing such factors as the claimant’s daily activities; the location,
duration, frequency, and intensity of the pain or other symptoms; and factors that
precipitate and aggravate the symptoms).
The ALJ may not simply recite these factors without linking them to the
evidence. Hardman v. Barnhart, 362 F.3d 676, 678-79 (10th Cir. 2004). But she is
also not required to perform “a formalistic factor-by-factor recitation of the
evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). In evaluating the
ALJ’s analysis, we do not require technical perfection, but are guided by common
sense. Keyes-Zachary, 695 F.3d at 1167.
Ms. Wahpekeche complains that the ALJ failed to link any of the factors to
specific evidence. We disagree. In his report and recommendation, the magistrate
judge carefully parsed the ALJ’s decision and discussed in detail the ALJ’s specific
reasons for her adverse credibility finding. See Aplt. App., Vol. II at 502-05. We
need not repeat that discussion here. As the magistrate judge’s analysis details, the
ALJ tied the evidence to specific factors she was required to consider, such as the
frequency and effectiveness of medical treatment, inconsistencies between
Ms. Wahpekeche’s allegations and the medical records, and reports of her daily
activities. The ALJ’s conclusion was supported by substantial evidence.
4
In light of this, there is also no merit to Ms. Wahpekeche’s claim that the ALJ
simply relied on opaque boilerplate to reach a conclusion concerning her credibility.
Although the ALJ did cite disfavored boilerplate language, see id., Vol. I at 35-36,
“use of such boilerplate is problematic only when it appears in the absence of a more
thorough analysis,” Keyes-Zachary, 695 F.3d at 1170 (internal quotation marks
omitted). Here, the ALJ’s decision referred to specific evidence that supported her
conclusions.
Finally, Ms. Wahpekeche contends that one of the ALJ’s observations was
false, and therefore unsupported by substantial evidence: that “she was possibly drug
seeking requesting Lortab for back pain.” Aplt. App., Vol. I at 36. Medical records
show Ms. Wahpekeche presented at the Chickasaw Nation Medical Center on July 7,
2013, with back pain. Id., Vol. II at 467. After verifying that she had been
prescribed 90 Lortab pills only a few days earlier, the treating medical professional
prescribed Ibuprofen. Id. at 468-69. The clinic’s record does not explicitly state that
Ms. Wahpekeche requested Lortab during her July 7 appointment. But even
assuming the ALJ drew an incorrect inference from this record, reversal is not
required. Ms. Wahpekeche’s purported request for Lortab was merely one of several
factors the ALJ considered in assessing credibility, and the ALJ qualified her passing
reference to “drug seeking” with the word “possibly.”
Ms. Wahpekeche next complains that the ALJ’s determination that she can
return to her past relevant work is flawed because the ALJ failed to conduct a proper
5
analysis at step four of the sequential process.1 But as the Commissioner notes, she
fails to show that she presented an argument concerning this issue to the district
court. See Aplt. App., Vol. II at 474-92 (Ms. Wahpekeche’s Brief in Chief); id. at
508-14 (Objections to Magistrate Judge’s Report and Recommendation).
Accordingly, we decline to consider the issue. See Wall, 561 F.3d at 1066-67.
Finally, Ms. Wahpekeche argues that the ALJ’s RFC assessment is flawed
because it fails to specify the frequency of her need to alternate sitting and standing.
She cites language from a Social Security Ruling dealing with the implications of an
RFC assessment for less than a full range of sedentary work, requiring that the RFC
assessment “be specific as to the frequency of the individual’s need to alternate
sitting and standing.” SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). To the
extent that language applies to Ms. Wahpekeche’s RFC—which is for less than a full
range of light work—we agree with the Commissioner that the ALJ adequately
specified the frequency of her need to alternate sitting and standing.
In her decision, the ALJ stated that Ms. Wahpekeche could sit, stand, and walk
for up to one hour at a time, but would also need to change positions at her
workstation and stand without breaks. The hearing testimony amplifies the meaning
of this language, particularly the reference to standing “without breaks.” Dr. Ralston,
a medical expert, testified at the hearing that “it would be best to have
1
“The Commissioner follows a five-step sequential evaluation process to
determine whether a claimant is disabled.” Wells v. Colvin, 727 F.3d 1061, 1064 n.1
(10th Cir. 2013). “The claimant bears the burden of establishing a prima facie case
of disability at steps one through four.” Id.
6
[Ms. Wahpekeche] at least be given a break every hour to change position briefly.”
Aplt. App., Vol. I at 56. The ALJ adopted Dr. Ralston’s brief hourly change in
position. In her hypothetical question to the VE, which essentially matched the RFC
assessment in her decision, the ALJ explained that “if the person has been standing
for an hour then [they] will sit down but they can do it at the work station, not having
to take a full break from that.” Id. at 67 (emphasis added). With such an hourly
change in position, the VE testified that Ms. Wahpekeche could return to her job as a
PBX operator. Id. at 68.2 In sum, the ALJ’s specification of maximum sitting,
standing, and walking times, together with her adoption of brief hourly breaks,
provided sufficient information to support the RFC assessment concerning
Ms. Wahpekeche’s need to alternate sitting and standing.
Ms. Wahpekeche also attacks the math behind these figures. She argues that
if this Court divides the standing time of two (2) total hours out over the
eight (8) hours of work it will find that standing can only occur up to a
maximum of twenty-five (25) minutes at a time throughout the workday
and then a total of 8.8 times per day, so it is much less than the one (1) hour
total increment listed by the ALJ. The ALJ said she would need to stand
every hour.
Aplt. Opening Br. at 23. The problem with this argument is that the ALJ did not say
that Ms. Wahpekeche had to stand for an hour at a time (which would only allow her
2
Ms. Wahpekeche’s attorney asked the VE whether she could do the job if
permitted to change position “[a]s much as she wants, whenever she wants, and under
her control.” Aplt. App., Vol. 1 at 73. The VE replied that this would be a problem
“[i]f it’s happening every five minutes and you have difficulty performing the job
tasks while you’re doing that.” Id. (emphasis added). But he stated that the hourly
breaks specified in the ALJ’s RFC assessment likely would not affect
Ms. Wahpekeche’s ability to do the job. Id.
7
to stand twice a day), but that an hour was the maximum amount of time she could
stand at one time. And as we have already explained, based on the hearing
testimony, the ALJ’s reference to standing “without breaks” does not refer to
continuous standing in hourly increments, but to continuous working in spite of
position changes. Nor does the RFC assessment require that the time
Ms. Wahpekeche spends standing each day be divided into equal increments. In sum,
we see no mathematical problem with the ALJ’s analysis.
Finally, Ms. Wahpekeche contends that there is a conflict between the VE’s
testimony and the Dictionary of Occupational Titles (DOT), because the DOT’s
description of the PBX operator job does not expressly refer to a sit/stand option.
She argues that the VE should have explained how he resolved this “conflict.”
See SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (requiring ALJ to resolve
conflicts between DOT descriptions and VE testimony before relying on VE
evidence). But she fails to demonstrate how any conflict exists between the VE’s
testimony and the DOT based simply on the DOT’s silence concerning sit/stand
options. Accordingly, the ALJ had no duty to resolve the alleged “conflict” before
accepting the VE’s testimony.3
3
Ms. Wahpekeche also argues that the ALJ should have asked the VE to
supply a “foundation for her belief that these jobs [sic] afford a sit-stand option.”
Aplt. Opening Br. at 28. To the extent this is intended as an argument separate from
the “conflict with the DOT” argument, the argument is insufficiently developed for
our review, and we decline to consider it.
8
The district court’s order affirming the Commissioner’s decision is affirmed.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
9