Akers v. Colvin , 556 F. App'x 754 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 21, 2014
Elisabeth A. Shumaker
Clerk of Court
MICHAEL A. AKERS,
Plaintiff - Appellant,
v. No. 13-5128
(D.C. No. 4:12-CV-00489-FHM)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
Michael A. Akers appeals from an order of the magistrate judge affirming the
Commissioner’s decision to deny social security supplemental security income
(“SSI”) benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g), 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Akers filed for SSI benefits alleging disability due to psychosis and
bipolar disorder. The Commissioner denied benefits, both initially and on
reconsideration. Mr. Akers then received a hearing before an administrative law
judge (“ALJ”), at which he was represented by counsel. The ALJ concluded that
Mr. Akers had a severe impairment of affective mood disorder, but that he retained
the residual functional capacity (“RFC”) to perform medium, light and sedentary
work, but he could not climb ropes, ladders, scaffolds, or work in environments that
exposed him to unprotected heights or dangerous moving machinery parts. The ALJ
found that Mr. Akers could understand, remember, and carry out simple to
moderately detailed instructions in a work setting, and interact with coworkers and
supervisors under routine supervision, but could interact with the public only
occasionally in person or by telephone. After considering testimony from a
vocational expert, the ALJ concluded Mr. Akers could perform his past relevant work
as a warehouse laborer and ice cream freezer assistant, and could also perform other
jobs existing in significant numbers in the national economy. The Appeals Council
denied Mr. Akers’ request for review. Mr. Akers appealed to the district court, and
the magistrate judge, sitting by consent, affirmed.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Robinson v. Barnhart, 366 F.3d 1078, 1080 (10th Cir.
2004) (internal quotation marks omitted). On appeal, Mr. Akers argues that the ALJ
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failed to properly analyze the medical source evidence. The ALJ afforded great
weight to the medical opinion of Dr. Minor Gordon, Ph.D., a consultative examining
psychologist, who prepared a detailed report. Dr. Gordon noted that Mr. Akers
denied any delusions or hallucinations, and appeared attentive and alert. Dr. Gordon
reported that Mr. Akers’ intelligence was low average, and he would, therefore, have
some difficulty passing judgment in a work setting depending on the complexity of
the task, but that he could communicate comfortably, and “should be able to perform
some type of routine and repetitive task on a regular basis and he certainly could be
expected to relate adequately with coworkers and supervisors on a superficial level
for work purposes.” Aplt. App., Vol. 3, at 318. Mr. Akers does not challenge the
ALJ’s consideration of Dr. Gordon’s evidence.
The ALJ gave some weight to the mental status form filled out by
Mr. Caswell, a licensed professional counselor, who stated that Mr. Akers was
intelligent but immature, had below-average thought processes and trouble focusing,
and could perform simple tasks. But he opined Mr. Akers could not keep a job
because he could not handle work pressure or responsibility, would need constant
supervision, and could not relate to coworkers. Id. at 258. Mr. Akers argues the
ALJ failed to use the factors set out in 20 C.F.R. § 404.1527(c) in considering
Mr. Caswell’s opinion. We find no error. Licensed professional counselors are not
“acceptable medical sources”—and thus may not provide medical opinions—but fall
within the category of “other sources” whose opinions may be considered to show the
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severity of a claimant’s impairment. See SSR 06-03p, 2006 WL 2329939, at 1-2
(Aug. 9, 2006). “[T]he factors in 20 CFR 404.1527[(c)] . . . explicitly apply only to
the evaluation of medical opinions from ‘acceptable medical sources,’ [though] these
same factors can be applied to opinion evidence from ‘other sources.’” Id. at *4.
With respect to “other sources” evidence, SSR 06-03p states that an ALJ “generally
should explain the weight given to opinions from these ‘other sources’” or otherwise
ensure the decision permits a reviewer to follow his or her reasoning. Id. at *6.
Here, the ALJ complied with SSR 06-03p and other applicable regulations by
explaining the weight he assigned to Mr. Caswell’s opinion and the reason for that
weight.
The ALJ gave very little weight to the opinion of Dr. Johnson-Miller, who
completed a mental status form two days after the ALJ’s hearing. Dr. Johnson-Miller
wrote that Mr. Akers “reports” that he could not “respond appropriately to work
pressure, supervision and co-workers”; “reported irritability and difficulty controlling
his emotions”; “reports anger outbursts [and] labile mood”; “reported difficulty
maintaining employment due to bad attitude”; and “reports seeing angels and
communicating with them.” Aplt. App., Vol. 3, at 448-49. She also opined that
Mr. Akers could remember, comprehend and carry out directions on an independent
basis, but displayed poor focus, grandiosity and religiosity, id. at 448, and appeared
to display disorganized thought pattern and loose associations, id. at 449.
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The ALJ explained that he gave very little weight to Dr. Johnson-Miller’s
evidence because it was quite conclusory and provided very little explanation of the
evidence relied upon, and because her opinions departed substantially from the rest
of the evidence. Mr. Akers argues on appeal that Dr. Johnson-Miller’s report was not
conclusory. We disagree. Dr. Johnson-Miller expressly relied quite heavily on
Mr. Akers’ subjective complaints and provided little or no explanation of the basis of
her conclusions, thus, the ALJ was entitled to give her report little weight. See
Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988) (holding that “a treating
physician’s opinion may be rejected if it is brief, conclusory and unsupported by
medical evidence”). We find no merit in Mr. Akers’ claim that the ALJ ignored
Dr. Johnson-Miller’s mental RFC findings; those findings are for recording summary
conclusions and are included and reported in her mental status form, which the ALJ
thoroughly discussed. Mr. Akers also argues that the ALJ relied improperly on
speculation and boilerplate when he mentioned the possibility “that a doctor may
express an opinion in an effort to assist a patient with whom he or she sympathizes
for one reason or another” and that “patients can be quite insistent and demanding in
seeking supportive notes or reports from their physicians.” Aplt. App., Vol. 2, at 25.
These comments clearly do not constitute the sole basis for the weight the ALJ
assigned to Dr. Johnson-Miller’s opinion, and the ALJ properly provided a fuller,
and more specific explanation for his evaluation of this evidence. See Mays v.
Colvin, 739 F.3d 569, 577 (10th Cir. 2014) (use of same boilerplate observation not
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improper where it was not the sole basis of the assigned weight and did not detract
from ALJ’s further explanation).
Next, Mr. Akers argues the ALJ erred by not expressly discussing a mental
status form completed in November 2009 by a treatment provider at the Grand Lake
Mental Health Center, where Mr. Akers had been treated on an outpatient basis. This
treatment provider’s signature is illegible and the form does not indicate who
completed it or the provider’s medical credentials. This provider opined that
Mr. Akers displayed an ability to think, reason, and respond; to remember,
comprehend and carry out instructions; and to respond to work pressure, supervision
and coworkers, but also had a poor ability to relate to others and could not handle
funds. Aplt. App., Vol. 3, at 313. We agree with the magistrate judge’s conclusion
that this provider’s form supports, and does not contradict, the ALJ’s RFC finding.
Thus, we find no reversible error in the ALJ’s failure to discuss this opinion. See
Mays, 739 F.3d at 578-79 (“[A]n ALJ’s failure to weigh a medical opinion involves
harmless error if there is no inconsistency between the opinion and the ALJ’s
assessment of residual functional capacity.”); see also Howard v. Barnhart, 379 F.3d
945, 947 (10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence
unfavorably in order to determine a claimant’s RFC, the need for express analysis is
weakened.”). For the same reason, we conclude the ALJ’s failure to discuss the
assessments of two state agency psychologists, Drs. Holloway and Kampschaefer,
was harmless error. Both concluded that Mr. Akers’ mental impairment was
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non-severe, which is less favorable to Mr. Akers than the ALJ’s conclusion that
Mr. Akers did have a severe mental impairment. When the ALJ’s RFC is “generally
consistent” with the findings in an opinion, or if the RFC is “more favorable” to the
claimant than the medical sources’ findings, then “[t]here is no reason to believe that
a further analysis or weighing of [the] opinion could advance [the claimant’s] claim
of disability.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012).
Finally, we find no error in the ALJ’s discussion and consideration of the
statements and testimony from Mr. Akers’ parents. The ALJ discussed much of their
testimony and statements and it is clear from the ALJ’s decision that he considered
all of their evidence. Mr. Akers is essentially arguing that because the ALJ did not
discuss each piece of evidence, he did not consider it. But an ALJ is not required to
“reference everything in the administrative record.” Wilson v. Astrue, 602 F.3d 1136,
1148 (10th Cir. 2010).
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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