Bales v. Astrue , 374 F. App'x 780 ( 2010 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    March 22, 2010
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    LARRY D. BALES,
    Plaintiff-Appellant,
    v.                                                  No. 09-3104
    (D.C. No. 2:07-CV-02517-JTM)
    MICHAEL J. ASTRUE, Commissioner                       (D. Kan.)
    of Social Security Administration,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior
    Circuit Judge.
    Larry D. Bales appeals the Commissioner’s denial of benefits, claiming an
    Administrative Law Judge (ALJ) (1) failed to account for all of his impairments;
    (2) inaccurately assessed his residual functional capacity (RFC) by omitting his
    treating physician’s opinion; (3) wrongfully discredited his allegations of pain;
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    and (4) improperly relied on the testimony of a vocational expert (VE). We
    exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm.
    I
    Mr. Bales alleged he was disabled by problems associated with his elbows
    and back. After an administrative hearing, an ALJ determined that Mr. Bales was
    impaired by degenerative joint disease of both elbows; degenerative disc
    disease/degenerative joint disease of the back; and carpal tunnel syndrome, status
    post release, but these impairments were not sufficiently severe to meet or equal a
    listed impairment. Hence the ALJ concluded at step five of the five-step
    sequential evaluation process, see 20 C.F.R. § 404.1520; Wall v. Astrue, 
    561 F.3d 1048
    , 1052 (10th Cir. 2009) (explaining the five-step process), that Mr. Bales was
    not disabled because he retained the RFC to perform a significant range of light
    work. The Appeals Council denied review, and the district court affirmed. Now
    on appeal, Mr. Bales contends the ALJ did not account for specific impairments,
    omitted his treating physician’s opinion from the RFC, discredited his complaints
    of pain, and elicited unreliable testimony from the VE.
    II
    We review the ALJ’s decision “to determine whether the factual findings
    are supported by substantial evidence in the record and whether the correct legal
    standards were applied.” Bowman v. Astrue, 
    511 F.3d 1270
    , 1272 (10th Cir.
    2008) (quotation omitted). “We consider whether the ALJ followed the specific
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    rules of law that must be followed in weighing particular types of evidence . . . ,
    but we will not reweigh the evidence or substitute our judgment for the
    Commissioner’s.” Cowan v. Astrue, 
    552 F.3d 1182
    , 1185 (10th Cir. 2008)
    (quotation omitted). The ALJ’s decision is “evaluated based solely on the reasons
    stated,” as we will not “overstep our institutional role and usurp essential
    functions committed in the first instance to the administrative process.” Robinson
    v. Barnhart, 
    366 F.3d 1078
    , 1084-85 (10th Cir. 2004) (quotation omitted).
    A. Impairments
    We begin with Mr. Bales’ contention that the ALJ failed to evaluate all of
    his impairments. He acknowledges the ALJ considered his degenerative joint
    disease of both elbows, degenerative joint and disc disease of the back, and carpal
    tunnel syndrome, but asserts the ALJ did not account for several other diagnoses.
    See Aplt. Br. at 32-33. This argument fails, however, because the diagnoses to
    which Mr. Bales refers are medical findings that contribute to the same
    impairments considered by the ALJ. See generally 20 C.F.R. § 404.1508
    (“impairment must result from anatomical, physiological, or psychological
    abnormalities which can be shown by medically acceptable clinical and laboratory
    diagnostic techniques”). And each finding was specifically accounted for by the
    ALJ in his recitation of the evidence. See 20 C.F.R. § 404.1520(a)(3) (“We will
    consider all evidence in your case record when we make a determination or
    decision that you are disabled.”). Indeed, the ALJ recognized that Mr. Bales had
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    “bilateral medial and lateral epicondylitis,” ROA, Vol. II at 24, “diffuse
    spondylosis . . . and multiple bulging discs with mild to moderate foraminal
    stenosis and central protrusion of the L5-S1,” and “bilateral ulnar entrapment
    neuropathies,” 
    id. at 26,
    to name a few. On this record, Mr. Bales’ contention is
    meritless.
    B. RFC and the Treating Physician Rule
    Next Mr. Bales contends the ALJ inaccurately assessed his RFC by
    omitting limitations imposed by his treating physician, Dr. James Hamilton.
    Dr. Hamilton was one of many physicians who treated Mr. Bales, and, during the
    course of his treatment, he issued a variety of opinions, including his belief that
    Mr. Bales was permanently disabled. He also indicated on a Medical Source
    Statement (MSS) that in an eight-hour workday, Mr. Bales could sit no more than
    two hours, stand or walk no more than two hours, and must rest for four hours,
    without lifting any weight or using his hands or arms for reaching, handling, or
    fingering. The ALJ rejected the MSS and assessed an RFC that allowed
    Mr. Bales to lift, carry, push, or pull ten pounds frequently and twenty pounds
    occasionally; sit or stand and walk for six hours in an eight-hour workday; and
    occasionally balance, stoop, kneel, or crouch. Mr. Bales also was restricted from
    climbing ladders, ropes, or scaffolding, and performing hard grasping with his
    dominant hand, although he had no fine manipulative limitation. Mr. Bales
    contends this RFC is not supported by substantial evidence because the ALJ
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    rejected Dr. Hamilton’s opinion, which was entitled to controlling weight by
    virtue of his status as a treating physician.
    Initially, Dr. Hamilton’s belief that Mr. Bales was permanently disabled is
    not dispositive because, as the ALJ recognized, that issue is reserved to the
    Commissioner. 20 C.F.R. § 404.1527(e)(1); Castellano v. Sec’y of Health &
    Human Servs., 
    26 F.3d 1027
    , 1029 (10th Cir. 1994). With regard to the particular
    limitations expressed in the MSS, the treating physician rule generally accords
    “greater weight to the opinions of [doctors] who have treated the claimant than
    . . . those who have not.” Hackett v. Barnhart, 
    395 F.3d 1168
    , 1173 (10th Cir.
    2005). So long as an “opinion is supported by medically acceptable clinical and
    laboratory diagnostic techniques and is not inconsistent with other substantial
    evidence in the record,” a treating physician’s opinion is entitled to controlling
    weight. Hamlin v. Barnhart, 
    365 F.3d 1208
    , 1215 (10th Cir. 2004). But if either
    requirement is not met, the ALJ must decide whether to assign the opinion some
    lesser weight or reject it altogether based on the factors enumerated at 20 C.F.R.
    § 404.1527(d). See Pisciotta v. Astrue, 
    500 F.3d 1074
    , 1077 (10th Cir. 2007). 1
    1
    These factors include:
    (1) the length of the treatment relationship and the frequency of
    examination; (2) the nature and extent of the treatment relationship,
    including the treatment provided and the kind of examination or
    testing performed; (3) the degree to which the physician’s opinion is
    supported by relevant evidence; (4) consistency between the opinion
    and the record as a whole; (5) whether or not the physician is a
    (continued...)
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    The ALJ here acknowledged that Dr. Hamilton was arguably a treating
    physician, but he declined to accord the MSS any weight because its limitations
    were unsupported by Dr. Hamilton’s own recommendations. See 
    id. at 1078
    (“Medical evidence may be discounted if it is internally inconsistent or
    inconsistent with other evidence.” (quotation omitted)). In articulating “specific,
    legitimate reasons” for rejecting the MSS, Watkins v. Barnhart, 
    350 F.3d 1297
    ,
    1301 (10th Cir. 2003) (quotation omitted), the ALJ explained that Dr. Hamilton
    did not see Mr. Bales from December 2001 through March 2004 on account of
    positive results from a left epicondylar release he performed. After their March
    2004 appointment, however, Dr. Hamilton believed Mr. Bales was permanently
    and totally disabled, despite stating only that Mr. Bales could not continue
    working as a heavy laborer. Dr. Hamilton also declined to prescribe pain
    medication and instead instructed Mr. Bales to perform hand-strengthening
    exercises. Additionally, Dr. Hamilton delineated a multitude of restrictions in the
    MSS, but his October 2004 exam primarily revealed elbow limitations. And,
    while other physicians resisted Mr. Bales’ efforts to be certified as disabled,
    Dr. Hamilton yielded. This explanation provides an adequate rationale for
    1
    (...continued)
    specialist in the area upon which an opinion is rendered; and
    (6) other factors brought to the ALJ’s attention which tend to support
    or contradict the opinion.
    Pisciotta v. Astrue, 
    500 F.3d 1074
    , 1077-78 (10th Cir. 2007).
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    rejecting the MSS based on the factors of § 404.1527(d). See Oldham v. Astrue,
    
    509 F.3d 1254
    , 1258 (10th Cir. 2007).
    Mr. Bales contends this explanation substitutes the ALJ’s opinion for
    Dr. Hamilton’s to achieve a greater RFC, but the record confirms that the RFC
    was predicated on substantial evidence. Mr. Bales asserts the ALJ should have
    recontacted Dr. Hamilton to clarify his opinion, see 20 C.F.R. § 404.1512(e), but
    nothing suggests that the evidence the ALJ received from Dr. Hamilton was
    inadequate or incomplete. See White v. Barnhart, 
    287 F.3d 903
    , 908-09 (10th Cir.
    2001). The ALJ correctly evaluated Dr. Hamilton’s opinion, and though there is
    evidence that Mr. Bales experiences difficulty with his arms and back, it is not
    our function to reweigh that evidence.
    C. Credibility
    Mr. Bales also contends, as best we can tell, that the ALJ relied on
    improper grounds to discredit his allegations of pain and his wife’s testimony.
    Our review of the record and the ALJ’s decision, however, confirms that the ALJ
    considered appropriate factors in finding that Mr. Bales was “exaggerating his
    symptoms and problems.” ROA, Vol. II at 29.
    The credibility of a claimant’s pain allegations should be evaluated based
    on the following factors:
    the levels of medication and their effectiveness, the extensiveness of
    attempts (medical or nonmedical) to obtain relief, the frequency of
    medical contacts, the nature of daily activities, subjective measures
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    of credibility that are peculiarly within the judgment of the ALJ, the
    motivation of and relationship between the claimant and other
    witnesses, and the consistency or compatibility of nonmedical
    testimony with objective medical evidence.
    Branum v. Barnhart, 
    385 F.3d 1268
    , 1273-74 (10th Cir. 2004) (quotation
    omitted). These factors were considered by the ALJ. Indeed, the ALJ observed
    that Mr. Bales’ physicians generally refused his requests for narcotics, suggesting
    that his condition did not warrant serious pain medication. The ALJ also noted
    that despite his claims of disability, Mr. Bales enjoyed nearly two years of good
    results from his surgery, while his back condition was relieved by injections. He
    also received no treatment, other than a single diagnostic study, during the seven
    months preceding his administrative hearing. Moreover, while Mr. Bales sought
    to be certified as disabled by his doctors, a consultative examiner found no
    significant clinical abnormalities and restricted him only from unreasonable
    lifting.
    Additionally, the ALJ found inconsistencies between Mr. Bales’ testimony
    and his reported daily activities, which included household chores, mowing, and
    cooking. The ALJ also found that Mr. Bales’ professed ability to perform
    mechanical work and odd jobs, as well as care for his grandson, did not support
    his claims of being unable to stand or walk, sit for more than forty-five minutes,
    or walk more than thirty to forty feet. Further, Mr. Bales reported differing
    accounts concerning his ability to sleep and testified to significant post-operative,
    -8-
    upper extremity limitations, contrary to substantial medical evidence indicating
    no such degree of weakness. Finally, the ALJ found that Mr. Bales’ wife offered
    her own inconsistent testimony. This recitation of the inconsistencies in the
    record not only demonstrates that the ALJ relied on proper grounds to make his
    adverse credibility finding, but also that the credibility finding is supported by
    substantial evidence.
    D. Vocational Expert’s Testimony
    Lastly, Mr. Bales challenges the VE’s testimony. He first contends the
    hypothetical question posed to the VE inaccurately omitted Dr. Hamilton’s
    restrictions. This argument has no merit, however, because we have already
    concluded that the restrictions identified in the MSS were not supported by the
    record. See Decker v. Chater, 
    86 F.3d 953
    , 955 (10th Cir. 1996) (holding that
    hypothetical questions “must reflect with precision all of [the claimant’s]
    impairments, but they need only reflect impairments and limitations that are borne
    out by the evidentiary record” (citation omitted)). He also contends the VE
    offered an alternative occupation that does not exist in the Dictionary of
    Occupational Titles (DOT), that of “gate guard; DOT code 272.667-038.” ROA,
    Vol. II at 339. This argument relies on an apparent misstatement by the VE,
    however, as the DOT code for a gate guard is 372.667-030. Finally, Mr. Bales
    asserts the VE propounded jobs that exceed his educational and communication
    abilities. But the VE assumed an eighth grade skill-level, and when asked by the
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    ALJ if there were any conflicts between her testimony and the DOT descriptions,
    indicated there were none. See Poppa v. Astrue, 
    569 F.3d 1167
    , 1173-74
    (10th Cir. 2009) (explaining ALJ’s duty to inquire about and resolve any conflicts
    between the VE’s testimony and a DOT job description). To the extent Mr. Bales
    suggests any further error, his failure to develop the argument obviates our need
    to consider it. See Berna v. Chater, 
    101 F.3d 631
    , 632 (10th Cir. 1996).
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Stephen H. Anderson
    Circuit Judge
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