Dray v. Astrue , 353 F. App'x 147 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 17, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DARLEA ANN DRAY,
Plaintiff-Appellant,
No. 09-7058
v. (D.C. No. 6:08-CV-00105-RAW-KEW)
(E.D. Okla.)
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and EBEL, Circuit Judges.
Plaintiff Darlea Ann Dray appeals from the district court’s judgment
affirming the Commissioner’s denial of her applications for disability insurance
and supplemental security income benefits under the Social Security Act. Taking
jurisdiction under 42 U.S.C. § 405(g) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Background
Ms. Dray was fifty-one years old at the time of the Commissioner’s
decision. She has a tenth grade education and has worked as a deli clerk, food
demonstrator, and home-care provider for the elderly. She alleged disability since
March 13, 2004, based on hepatitis C and chronic cirrhosis. After her
applications were denied initially and upon reconsideration, Ms. Dray had a
hearing before an Administrative Law Judge (ALJ) at which she and a vocational
expert testified. The ALJ applied the familiar five-step sequential evaluation
process used in social security matters, see Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (describing the process), and found at step one that Ms. Dray had
not performed any substantial gainful activity since her alleged onset date. At
step two, the ALJ determined that Ms. Dray’s hepatitis, chronic liver disease, and
cirrhosis were severe impairments but her mental impairment—depression—was
not severe. At step three, the ALJ found that Ms. Dray’s impairments did not
meet or equal the criteria for a presumptively disabling impairment. See
20 C.F.R. Pt. 404, Subpt. P, App’x 1.
Proceeding to step four, the ALJ determined that Ms. Dray was not fully
credible, found she retained the residual functional capacity (RFC) to perform
light work, and decided she had the ability to return to her past work as a deli
clerk. Continuing on to step five, apparently in the alternative, the ALJ used the
Medical-Vocational Rules as a framework and determined that Ms. Dray was not
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disabled because, considering her age, education, work experience, and RFC, she
could make a successful adjustment to other work that exists in significant
numbers in the national economy. The Appeals Council denied review, making
the ALJ’s decision the Commissioner’s final decision. The district court
affirmed, and Ms. Dray appealed to this court.
Discussion
Ms. Dray raises one issue on appeal, whether the ALJ erred at step two in
finding that her mental impairment was not severe. Our review is “to determine
whether the factual findings are supported by substantial evidence in the record
and whether the correct legal standards were applied.” Lax, 489 F.3d at 1084(quotation omitted).
Ms. Dray’s step-two argument fails as a matter of law. An impairment is
“severe” if it “significantly limits [a claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). A claimant must
make only a de minimis showing for her claim to advance beyond step two of the
analysis. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004). Thus, step
two is designed “to weed out at an early stage of the administrative process those
individuals who cannot possibly meet the statutory definition of disability.”
Bowen v. Yuckert, 482 U.S. 137, 156 (1987) (O’Connor, J., concurring). To that
end, a claimant is required to establish, and an ALJ is required to find, only one
severe impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007)
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(rejecting argument that ALJ erred in failing to find an impairment severe at step
two where the ALJ found other impairments were severe). The reason is
grounded in the Commissioner’s regulations describing step two, which state: “If
you do not have a severe medically determinable physical or mental impairment
. . . or a combination of impairments that is severe . . ., we will find that you are
not disabled.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (emphasis
added). By their plain terms, the regulations require a claimant to show only “a
severe” impairment—that is, one severe impairment—in order to avoid a denial of
benefits at step two. As long as the ALJ finds one severe impairment, the ALJ
may not deny benefits at step two but must proceed to the next step. Accordingly,
the failure to find a particular impairment severe at step two is not reversible
error as long as the ALJ finds that at least one other impairment is severe.
But that is not to say, as Ms. Dray posits, that the disability evaluation
process ends at step two with regard to an impairment found to be non-severe.
See Aplt. Br. at 23-24. For example, at step four, an ALJ must “consider the
limiting effects of all [a claimant’s] impairment(s), even those that are not severe,
in determining [RFC].” 20 C.F.R. §§ 404.1545(e), 416.945(e); see also Social
Security Ruling 96-8P, 1996 WL 374184, at *5 (substantially the same).
Although Ms. Dray has not specifically argued that the ALJ’s RFC finding was
flawed because he did not properly evaluate the medical evidence regarding her
mental impairment, we will consider her step-two arguments in that light,
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although we note that we are under no obligation to do so. See Murrell v.
Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (explaining that an issue not
formally identified in docketing statement or argued in opening brief is deemed
waived); see also id. at 1389-90 (concluding that ALJ’s alternate disposition of
claim at step five foreclosed success on appeal that alleged only step-four error). 1
Ms. Dray points to the reports of three medical sources who examined her
mental impairments. The first, Everett E. Bayne, M.D., performed a psychiatric
evaluation in January 2005 and diagnosed Ms. Dray with depressive disorder
secondary to chronic illness and a Global Assessment of Functioning (GAF) score
of 55. 2 See Aplt. App’x, Vol. I at 210-11. Dr. Bayne found that Ms. Dray could
add and subtract single- and double-digit numbers but was unable to perform
simple multiplication and division, and that her “IQ appears greater than 80.” Id.
at 211. He also concluded that “[w]ith proper treatment, [she] could improve
1
The only challenge to the RFC finding that Ms. Dray iterates consists of a
single sentence in the conclusion of her reply brief: “The limitations in
intellectual functioning, attention and concentration, memory and math skills as
outlined above, were not considered by the ALJ insofar as [Ms. Dray’s] residual
functional capacity.” Aplt. Reply at 7. Not only is this argument insufficiently
developed under Murrell, but “[t]his court does not ordinarily review issues
raised for the first time in a reply brief.” Stump v. Gates, 211 F.3d 527, 533
(10th Cir. 2000). Nonetheless, we exercise our discretion to do so.
2
Dr. Bayne used the abbreviation “LOF” rather than “GAF” in assigning a
value to Axis V of his assessment. Axis V is used for reporting GAF, which is
“the individual’s overall level of functioning.” Diagnostic and Statistical Manual
of Mental Disorders 32 (4th ed. Text Revision 2000) (DSM-IV-TR). A GAF score
of 55 indicates “[m]oderate symptoms . . . OR moderate difficulties in social,
occupational, or school functioning.” Id. at 34.
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within the next 12 months,” that she was “mentally competent to manage funds
without assistance,” and that she was “employable.” Id.
The second medical source, Roy Smallwood, Ph.D., a state-agency
physician, completed a Psychiatric Review Technique form in January 2005.
Dr. Smallwood found mild functional limitations in maintaining concentration,
persistence, and pace, and some short term memory issues, but no limitations in
activities of daily living, social functioning, or episodes of extended
decompensation. Id., Vol. II at 223, 225. He concluded that Ms. Dray’s
impairments were not severe. Id., Vol. I at 213.
The final medical source regarding Ms. Dray’s mental impairment, Arthur
Joyce, M.D., did not examine Ms. Dray, but reviewed the medical evidence and
completed a medical interrogatory in November 2006. Dr. Joyce described
functional limitations similar to those that Dr. Smallwood found and noted that
Ms. Dray has below average intellectual functioning “with expected below
average performance in tasks of attention and concentration, immediate and
delayed memory,” and an estimated GAF score of 70, indicating mild symptoms.
Id., Vol. II at 241-42. He concluded that her depression did not meet a Listing.
Id. at 241.
The ALJ reviewed these three reports in detail in his decision, and
specifically considered Ms. Dray’s mental impairments at steps two, three, and
four of the analytical process. Except for Dr. Bayne’s estimation that Ms. Dray’s
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GAF score was 55, indicating moderate difficulties or symptoms, the reports
indicate mild or no limitations in the four broad functional areas evaluated in
connection with mental impairments, see 20 C.F.R. §§ 404.1520a(c)(3),
416.920a(c)(3); some short-term memory loss; an inability to multiply or divide;
and below average intellectual functioning, attention, and concentration.
Importantly, as the ALJ noted, none of these medical sources placed any
limitations on Ms. Dray’s ability to work, and Dr. Bayne specifically considered
her employable despite his GAF finding. And while Ms. Dray claims that she has
borderline intellectual functioning, which is “an IQ in the range of 71-84,”
DSM-IV-TR at 740, her claim is based on Dr. Bayne’s assessment that her “IQ
appears greater than 80,” Aplt. App’x, Vol. I at 211, and on Dr. Joyce’s opinion
that she has below average intellectual functioning. However, Dr. Bayne did not
assess a specific IQ or diagnose borderline intellectual functioning, he only
estimated that Ms. Dray’s IQ was greater than 80; and in any event, he
specifically concluded that Ms. Dray was employable. And Dr. Joyce did not
suggest that Ms. Dray’s below-average intellectual functioning limited her ability
to work. We therefore see no error in the ALJ’s RFC finding, which omitted any
limitations related to Ms. Dray’s mental impairment.
The judgment of the district court is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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