Leach v. Astrue , 470 F. App'x 701 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
January 11, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TRACY A. LEACH,
Plaintiff-Appellant,
No. 11-5068
v. (D.C. No. 4:09-CV-00537-TCK-TLW)
(N.D. Okla.)
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
Tracy A. Leach appeals a district court order affirming the Commissioner’s
denial of disability insurance and supplemental security income benefits.
Ms. Leach contends an administrative law judge (“ALJ”) erred in 1) evaluating
the medical source evidence; 2) assessing her residual functional capacity
(“RFC”); 3) posing an inaccurate hypothetical question to a vocational expert
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
(“VE”); and 4) discrediting her testimony. We have jurisdiction under 28 U.S.C.
§ 1291 and 42 U.S.C. § 405(g), and we affirm.
I
Ms. Leach applied for benefits, claiming she became disabled on
December 15, 2004, due to congenital heart disease, shortness of breath, scoliosis,
and learning difficulties. According to the record, Ms. Leach had four heart
surgeries between the time she was four weeks and seven years old. She also had
a pacemaker implanted in 1985 and has since had several surgical procedures to
replace or maintain her pacemaker. Additionally, Ms. Leach suffers from chronic
pulmonary issues, back pain, and a history of learning disabilities. She has
applied for benefits some six times, but her applications have all been denied.
This particular application was denied after an ALJ concluded at step five
of the five-step sequential evaluation process, see 20 C.F.R. §§ 404.1520(a)(4);
416.920(a)(4); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining
the five-step process), that Ms. Leach was not disabled because she retained the
RFC to perform sedentary work subject to certain restrictions. Specifically, the
ALJ restricted Ms. Leach to occasional lifting and carrying of up to ten pounds,
five to nine pounds frequently; sitting (with normal breaks) for up to six hours in
an eight-hour workday; and standing and/or walking (with normal breaks) for up
to two hours in an eight-hour workday. The ALJ also determined that Ms. Leach
could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
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crawl, but she should avoid climbing ladders, ropes, and scaffolds. In arriving at
this decision, the ALJ considered, among other things, reports from Ms. Leach’s
family physician, her cardiac and pulmonary specialists, and several agency
physicians. The ALJ also heard testimony from a VE and Ms. Leach concerning
the limiting effects of her conditions. Following the ALJ’s decision, the Appeals
Council denied review and the district court affirmed the denial of benefits.
Ms. Leach then initiated this appeal.
II
“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.” Cowan v. Astrue, 552 F.3d 1182, 1184-85
(10th Cir. 2008) (internal quotation marks omitted). “We consider whether the
ALJ followed the specific rules of law that must be followed in weighing
particular types of evidence in disability cases, but we will not reweigh the
evidence or substitute our judgment for the Commissioner’s.” Id. (internal
quotation marks omitted).
On appeal, Ms. Leach contends the ALJ erred in 1) evaluating the medical
source evidence; 2) assessing her RFC; 3) posing an inaccurate hypothetical
question to the VE; and 4) discrediting her testimony.
These are the same contentions rejected by a magistrate judge in the district
court. See 28 U.S.C. § 636(b)(1)(B). Indeed, Ms. Leach first argued that the ALJ
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failed to properly weigh the medical source evidence, in particular an examination
note written by her family physician, Dr. Debra Colpitt. Dr. Colpitt had
completed a state medical report because Ms. Leach was attempting to become a
foster parent. The report questioned whether Ms. Leach had any condition that
would impair her ability to provide daily care for children during the next year,
and Dr. Colpitt responded “yes” by checking a box. On the next line she wrote,
“Only concern is functional class II-III heart disease.” Aplt. App., Vol. II at 229.
The ALJ did not explicitly discuss this note, but he reviewed Dr. Colpitt’s records
and found that her opinion was entitled to less than controlling weight because
she provided routine care and referred Ms. Leach to specialists for cardiac and
pulmonary treatment. Ms. Leach argued that the ALJ should have given
Dr. Colpitt’s note controlling weight, but the magistrate judge concluded that
Dr. Colpitt’s role as a family practitioner entitled her note to less weight than the
opinions of Ms. Leach’s cardiac and pulmonary specialists. Ms. Leach challenges
this conclusion on appeal. We agree with the magistrate judge.
Initially, the magistrate judge observed that Dr. Colpitt’s note in response
to whether Ms. Leach could care for children was arguably unrelated to the
question of her disability. Ms. Leach asserts that the magistrate judge’s
observation is an impermissible post hoc justification for the ALJ’s decision. See
Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008). But even if the
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magistrate judge exceeded the scope of his review by making this observation, the
balance of his analysis is correct and sufficient.
To be sure, Dr. Colpitt’s opinion was entitled to great deference; a treating
physician’s opinion is generally entitled to controlling weight, see Hackett v.
Barnhart, 395 F.3d 1168, 1173-74 (10th Cir. 2005) (stating that treating source
opinion is entitled to controlling weight if well-supported by clinical and
laboratory diagnostic techniques and is consistent with other substantial
evidence). But Dr. Colpitt provided routine care alongside treating cardiac and
pulmonary specialists whose opinions command greater weight under the
governing regulations. See 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5) (“We
generally give more weight to the opinion of a specialist about medical issues
related to his or her area of speciality than to the opinion of a source who is not a
specialist.”). In fact, in urging for greater weight to be accorded to Dr. Colpitt’s
note, Ms. Leach acknowledges that “the regulations [] specify that the ALJ should
give greater weight to a specialist . . . .” Aplt. Br. at 16. Under these
circumstances, we agree the ALJ correctly gave greater weight to the opinions of
Ms. Leach’s specialists than to a single note of Dr. Colpitt.
Still, Ms. Leach maintains that the ALJ failed to explain “why he
apparently deemed [Dr. Colpitt’s] opinion ‘inconsistent’ with other, substantial
evidence in the record.” Id. at 15. Contrary to Ms. Leach’s assertion, however,
nothing in the record indicates that the ALJ rejected Dr. Colpitt’s note (or any of
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her other assessments for that matter). Rather, the ALJ declined to accord
Dr. Colpitt’s opinions controlling weight due to her role as a family physician and
the availability of other evidence from treating specialists. The ALJ’s analysis
was “sufficiently specific to make clear” what weight he accorded Dr. Colpitt’s
opinions and the reasons for that weight. See Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007) (internal quotation marks omitted). Indeed, the ALJ
detailed the medical evidence, including records from Dr. Colpitt and Ms. Leach’s
specialists, and concluded that greater weight should be accorded to the
specialists’ opinions than to those of Dr. Colpitt. Ms. Leach’s argument that the
ALJ’s analysis is deficient is unavailing. 1
Ms. Leach’s remaining contentions are similarly unavailing and were
properly rejected by the magistrate judge. Ms. Leach maintains that the ALJ
failed to correctly assess her RFC, but the magistrate judge rightly concluded that
the RFC was predicated on substantial evidence. As the magistrate judge
observed,
[T]he ALJ reviewed the objective medical evidence to identify the
severity of plaintiff’s impairments. He then reviewed the records and
1
Ms. Leach advances a similar argument that the ALJ failed to adequately
explain what weight he accorded her treating specialists’ opinions. See Aplt. Br.
at 24. This argument is meritless, however, because the ALJ did not reject or
weigh these opinions unfavorably. See 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.”).
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comments of her family physician and her treating specialists,
followed by a review of her hospital records. The ALJ rounded out
his review by considering the opinions reached by five qualified state
agency physicians, both consultant and examination reports.
Aplt. App., Vol. I at 55. Among the agency physicians to offer an opinion was
Dr. Penny Aber, who believed Ms. Leach could occasionally lift ten pounds,
frequently lift less than ten pounds, stand or walk for at least two hours in an
eight-hour workday, and sit for six hours in an eight-hour workday. The ALJ
incorporated these restrictions into his RFC, and the magistrate judge recognized
that other aspects of Dr. Aber’s opinion challenged Ms. Leach’s testimony
concerning the severity of her symptoms. In fact, the magistrate judge concluded
that none of the evidence offered by Ms. Leach undermined the ALJ’s finding that
she retained the RFC for sedentary work subject to the specified restrictions.
The magistrate judge also rejected Ms. Leach’s claim that the ALJ posed an
inaccurate hypothetical question to the VE to determine whether she could
perform other work. Rather, the magistrate judge reiterated the hypothetical
question, examined certain physical and mental restrictions specified in the
record, and observed that the hypothetical question reflected with precision all the
limitations borne out by the record. See Decker v. Chater, 86 F.3d 953, 955
(10th Cir. 1996) (holding that the limitations specified in an ALJ’s hypothetical
question must be borne out by the record).
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Finally, the magistrate judge considered whether the ALJ properly
discredited Ms. Leach’s testimony concerning the severity of her symptoms.
Noting five inconsistencies between Ms. Leach’s testimony, her own statements
of the limiting effects of her impairments, and the objective medical evidence, the
magistrate judge determined that the ALJ adequately linked his adverse
credibility finding to specific evidence in the record. See Aplt. App., Vol. I at 60
(citing Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)).
We, like the magistrate judge, find no merit in Ms. Leach’s contentions.
And, because the magistrate judge evaluated those contentions under the same
standard that governs our review, we see no reason to repeat the magistrate
judge’s detailed and well-reasoned analysis. Accordingly, having considered the
parties’ appellate materials, the record on appeal, and the relevant legal
authorities, we AFFIRM the district court’s judgment for substantially the same
reasons stated in the magistrate judge’s report and recommendation dated
January 21, 2011, which was adopted by the district court’s order dated March 14,
2011.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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