Shubargo v. Barnhart ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 13, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
ELLIE E. SHUBARGO,
Plaintiff-Appellant,
No. 05-7003
v. (D.C. No. CIV-04-08-W)
(E.D. Okla.)
JO ANNE B. BARNHART,
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.
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.
Claimant Ellie E. Shubargo appeals from an order of the district court
affirming the Commissioner’s denial of her claim for Social Security benefits.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 and
reverse and remand.
I. Background
Mrs. Shubargo injured her back in April 1997 and has not worked since. In
June 1998, she filed an initial application for disability benefits. After
conducting a hearing, the Administrative Law Judge (ALJ) found that
Mrs. Shubargo had a mild-to-moderate cervical/thoracic spinal sprain and
functioned at the borderline level of intellectual functioning. He concluded,
however, that she had no impairment meeting the criteria of any of the listed
impairments described in Appendix 1 of the Regulations. See 20 C.F.R., part 404,
subpart P, app. 1. The ALJ also found that objective clinical and laboratory
diagnostic findings did not support Mrs. Shubargo’s claims of disabling pain and
that her pain did not preclude the performance of at least light work. Her request
for benefits was denied in September 1999. Mrs. Shubargo did not judicially
appeal from that decision, and it is binding in this appeal. See 20 C.F.R.
§ 404.955 .
The appeal at bar arises out of Mrs. Shubargo’s second disability
application, filed in August 2001. There, she again claimed disability resulting
from the same incident occurring in 1997, asserting that her condition had
worsened. Her claim was denied at the initial stage and on reconsideration, and a
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second hearing was held on March 26, 2003. Following that hearing, the ALJ
concluded once again that Mrs. Shubargo, who was forty-five years old at that
time, was not disabled. The ALJ found that Mrs. Shubargo suffers from
degenerative disc disease and an anxiety-related disorder and is unable to read.
But he nevertheless concluded at step four of the sequential evaluation process,
see Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the
five-step process set forth in 20 C.F.R. § 404.1520), that she could return to her
past light work as a housekeeper. Alternatively, after consulting a vocational
expert, the ALJ concluded at step five that, even if Mrs. Shubargo could not
return to her past work as a housekeeper, there was other light and sedentary work
existing in substantial numbers in the national economy that she could perform.
The Appeals Council denied Mrs. Shubargo’s request for administrative review,
making the ALJ’s decision the final decision of the Commissioner. See Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Mrs. Shubargo appealed the
decision to the district court, which affirmed the decision of the Commissioner.
In her appeal to this court, Mrs. Shubargo asserts that the ALJ erred by
(1) failing to explain why her impairments do not meet the criteria of a listed
impairment; (2) failing to either properly weigh the opinion of Dr. Kinney, who
Mrs. Shubargo listed as a treating physician, or to contact him to determine
whether he had actually treated her; (3) failing to perform a proper credibility
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analysis; and (4) ignoring a medical report prepared by a consulting physician that
opines that Mrs. Shubargo can only perform sedentary work.
II. Standard of review
“[T]he burden to prove disability in a social security case is on the
claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). 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.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004) (quotation marks omitted). “[B]ecause our review is based on the record
taken as a whole, we will meticulously examine the record in order to determine if
the evidence supporting the agency’s decision is substantial,” but we “neither
reweigh the evidence nor substitute our discretion for that of the Commissioner.”
Id. (quotation marks and brackets omitted). When determining whether correct
legal standards were applied and evidence is substantial, we examine whether the
ALJ followed the agency’s specific rules. See Frey v. Bowen, 816 F.2d 508, 512
(10th Cir. 1987). With these standards in mind, we address each of
Mrs. Shubargo’s claims of error.
III. Analysis
1. Step three analysis. At step three of the sequential evaluation, a
claimant must establish that her impairment is so severe that it is equivalent to all
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of the criteria of a specific listed impairment. See Sullivan v. Zebley, 493 U.S.
521, 530 (1990). A finding that an impairment meets a listing creates a
presumption of disability. Id. at 532. Mrs. Shubargo contends that the ALJ erred
in failing to discuss why she did not meet a listed impairment. See Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding that an ALJ is “required to
discuss the evidence and explain why he found that appellant was not disabled at
step three”).
We conclude that Clifton’s step three analysis is factually distinguishable.
In Clifton the court specifically noted that the ALJ failed to “discuss the evidence
or his reasons for determining that appellant was not disabled at step three.” Id.Here, in contrast, the ALJ evaluated all of the medical evidence (including
evidence from Mrs. Shubargo’s first application, which was submitted for
historical purposes) and explained what weight he gave to it. He obtained a
medical expert’s testimony that Mrs. Shubargo did not meet a spinal disorder
listing. The ALJ explained why he rejected the records from Dr. Kinney’s office
and why he had doubts as to Mrs. Shubargo’s credibility. He discussed the
psychiatric review technique forms in the medical record and accepted two
medical opinions stating that Mrs. Shubargo is only moderately limited in
understanding and remembering detailed instructions and interacting appropriately
with the general public. While our review would have been easier if the ALJ had
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set forth the specific criteria in the listings that he concluded Mrs. Shubargo did
not meet, we hold that the ALJ sufficiently explained why he believed that Mrs.
Shubargo is not presumptively disabled.
2. Physician assistant evidence. Mrs. Shubargo submitted medical
records from three visits she made to Dr. Kinney’s office over the course of ten
months. Mrs. Shubargo admits, and the medical records show, that she was
treated by Dr. Kinney’s physician’s assistant (PA), Bill Evans each time. Aplt.
Br. at 22. In the first of these records, Mrs. Shubargo complained only of
difficulty in sleeping because of stress. In the second, she complained of chronic
lumbar pain. No X-rays or MRIs of Mrs. Shubargo’s lumbar spine are in the
medical record, and the PA ordered none. But the PA noted positive straight leg
raising signs in both legs, weakness in the left leg, decreased patellar reflexes,
and decreased sensation in the lower left leg. He diagnosed low back pain with
radiculopathy.
One month later, the PA saw Mrs. Shubargo for the purpose of filling out a
residual functional capacity (RFC) form, and he prescribed Darvocet. Although
he conducted no further diagnostic tests, PA Evans changed his diagnosis on the
RFC form to herniated lumbar disc. PA Evans opined that Mrs. Shubargo could
walk less than one block and sit and stand no more than two hours in an eight-
hour workday for no more than ten minutes at a time. He stated that she would
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have to shift positions at will between sitting, standing, and walking, and that she
would need unscheduled breaks. She would have to elevate her left leg at times
when sitting, and would have to use a cane when walking or standing. And she
could occasionally lift less than ten pounds, and was limited in performing
repetitive reaching, handling, or fingering.
Mrs. Shubargo asserts that the ALJ erred by failing to give this report,
which she characterizes as Dr. Kinney’s opinion, controlling weight. See 20
C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003) (stating that an ALJ is required to give the opinion of a treating physician
controlling weight if it is both (1) “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and (2) “consistent with other
substantial evidence in the record”) (quotation marks omitted).
The ALJ rejected the medical report from Dr. Kinney’s office, concluding
that “little or no weight can be given to the records” because the PA, and not
Dr. Kinney, actually treated Mrs. Shubargo. Aplt. App. Vol. 2 at 25. The ALJ
also found that the restrictions provided by PA Evans were inconsistent with the
medical evidence in the record.
The medical opinions of a PA are not entitled to controlling weight under
the statutes. “Sources who can provide evidence to establish an impairment” that
may be entitled to controlling weight include only licensed physicians,
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optometrists, and podiatrists; licensed or certified psychologists; and qualified
speech-language pathologists. 20 C.F.R. § 404.1513(a). The ALJ should use a
PA’s medical observations to assist him in determining the severity of a
claimant’s impairments and how they affect her ability to work, see § 404.1513(d)
(allowing consideration of other medical-source evidence and defining “other
sources” to include physicians’ assistants), but a PA’s opinion does not carry the
same weight as the medical opinion of a licensed physician. The ALJ was not
required to give controlling weight to PA Evans’ opinion.
We also reject Mrs. Shubargo’s claim that the ALJ should have contacted
Dr. Kinney to determine whether he treated her. The medical records, on their
face, showed that PA Evans conducted all tests and prepared the RFC forms (even
though Dr. Kinney also placed his signature on them two years later), and
Mrs. Shubargo never asserted that Dr. Kinney actually treated her. Under these
facts, the ALJ had no duty to contact Dr. Kinney. See 20 C.F.R. § 404.1512(e)
(ALJ must recontact medical source for additional information when evidence is
inadequate for the ALJ to make a determination of disability); cf. White v.
Barnhart, 287 F.3d 903, 908-09 (10th Cir. 2001) (noting that rejection of
physician’s opinion does not trigger duty to recontact when record is adequate for
consideration).
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Finally, we conclude that the ALJ’s statement that PA Evans’ opinion and
limitations are inconsistent with the medical record is supported by substantial
evidence. Dr. Anagnost, who treated Mrs. Shubargo at the end of 1999 (before
she saw PA Evans during 2001), stated that Mrs. Shubargo could walk without
difficulty and had essentially “good range of motion” and only “mild evidence of
cervical spondylosis.” Aplt. App. Vol. 2 at 396-97. He recommended physical
therapy. Dr. Grubb, who examined Mrs. Shubargo in October 2001 after PA
Evans prepared his RFC, stated that the records indicated that she had only a
mildly bulging disc in her cervical spine (even though Mrs. Shubargo told him
that her MRI revealed disc disease in both her lumbosacral spine and cervical
spine). He found that her gait was normal, and she did not appear to be in need of
a cane. She had normal grip strength and dexterity, and had no tenderness or
muscle spasms. Consulting physicians stated in various assessments that
Mrs. Shubargo should be able to do simple, repetitive work in a low stress
environment and that she is able to adapt to work situations even with her mental
impairments.
3. Credibility analysis. Mrs. Shubargo next challenges the ALJ’s
assessment of her credibility, asserting that he did not properly discuss all the
factors set forth in Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). She
claims that the ALJ used only boilerplate language that is impermissible, citing
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Hardman v. Barnhart, 362 F.3d 676, 679-80 (10th Cir. 2004). The record belies
this assertion.
The ALJ specifically noted that Mrs. Shubargo’s claims of limited range of
motion were not consistent with medical records that at times showed her range of
motion to be “largely normal.” Aplt. App. Vol. 2 at 24. The ALJ noted that her
treating physician recommended only routine and conservative treatment (physical
therapy) even though she claimed to have severe, unrelenting pain. See Kepler v.
Chater, 68 F.3d 387, 390 (10th Cir. 1995) (noting that it is difficult for a claimant
“[t]o establish disabling pain without the explicit confirmation of treating
physicians”) (quotation marks omitted). He stated that her description of her pain
was so “extreme as to appear implausible,” noting that she did not take
medications very often or use a cane or other assistive device. Aplt. App. Vol. 2
at 24. The ALJ noted evidence indicating that one physician thought
Mrs. Shubargo did not put forth maximal effort during examinations and that she
told them that her MRI indicated lumbosacral disc disease, when that was not
true. We generally defer to an ALJ’s evaluation of credibility as long as the
findings are linked to substantial evidence. Kepler, 68 F.3d at 391. The ALJ’s
findings were sufficiently linked to such evidence.
Mrs. Shubargo next argues that the ALJ “missed, ignored, or miscast
evidence that reflected well upon Claimant’s credibility.” Aplt. Br. at 30. Our
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job as a reviewing court, however, is to determine whether the ALJ’s credibility
determination is sufficiently detailed and supported by substantial evidence. The
fact that he may have missed, ignored, or misunderstood certain evidence that
might support Mrs. Shubargo’s claims of disabling pain does not mandate reversal
as long as, on the whole record, substantial evidence supports his credibility
determination. See Hamlin, 365 F.3d at 1214.
Further, the evidence Mrs. Shubargo claims the ALJ missed, ignored, or
misinterpreted is inconsistent or nonexistent. For example, although
Mrs. Shubargo appeared to be weak at toe walking in one examination, two other
examinations indicated that she could toe walk normally. The medical records
Mrs. Shubargo cites to support her claim that she has asymmetrical
circumferential calf and thigh measurements and atrophy that the ALJ ignored do
not contain such measurements. Further, the cited records specifically state that
she “has no muscle atrophy.” Aplt. App. Vol. 2 at 252. The medical reports note
both a normal gait and grip strength. Thus the ALJ did not ignore a finding of
atrophy.
Mrs. Shubargo asserts that the ALJ misstated her testimony when he said
that she claimed her pain symptoms are present “‘constantly’ or all of the time.”
Id. at 24. She asserts that she never “stated her pain was constant.” Aplt. Br. at
34. But this assertion is also belied by the record. Mrs. Shubargo claimed to be
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“in a state of constant pain” in her application for reconsideration in 1999, Aplt.
App. at 108, and at the hearing she testified that, because of her pain, she lay
down “most of the time . . . that’s all I do,” id. at 83. She claimed that moving
caused her pain. Id. at 85. These statements support the ALJ’s interpretation that
Mrs. Shubargo complained of constant pain.
Mrs. Shubargo’s claim that the ALJ omitted the alleged fact that “she had a
dangerously low drop in her blood pressure during [a trigger-point] injection
procedure,” which would explain why there were no further attempts to perform
injections, Aplt. Br. at 33, is contradicted by the record. The statement regarding
Mrs. Shubargo’s blood pressure is a pre-admission note about anesthesia history
made before the injection procedure. See Aplt. App. Vol. 2 at 170.
Mrs. Shubargo actually “tolerated the [trigger point] procedure well” with “no
adverse reactions,” id. at 175, 174, and chose not to have further injections
because she said they did not help her, see id. at 244.
Finally, we reject Mrs. Shubargo’s claim that the ALJ erred by ignoring a
medical note limiting her activity and a vocational report from 1997. The medical
note was prepared before Mrs. Shubargo underwent physical therapy and other
palliative treatment and was for a limited six-day period in May 1997. And both
the note and the vocational report were considered in the September 1999
adjudication in which the ALJ found that Mrs. Shubargo could still perform light
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work. The ALJ had no duty to again discuss them in the adjudication that covered
the period from September 1999 through September 2001.
4. Step four and step five analysis. Three non-examining, non-treating
medical experts, one who is a state DDS physician and two who are employed by
the agency, prepared RFC forms or opinions for Mrs. Shubargo. One of the
agency experts, Dr. Woodcock, stated that Mrs. Shubargo could occasionally lift
and/or carry ten pounds, frequently lift and/or carry less than ten pounds, stand
and/or walk at least two hours in an eight-hour workday, and sit a total of about
six hours in an eight-hour workday. He based his opinion on the medical records
from PA Evans and Dr. Grubb. These exertional limitations indicate that
Mrs. Shubargo has the capacity to perform only sedentary work. See 20 C.F.R.
§ 404.1567(a).
But based on these same medical records, the DDS physician and the
second agency expert stated that Mrs. Shubargo could perform light work. The
ALJ briefly mentioned the existence of Dr. Woodcock’s report in his decision, but
he did not discuss Dr. Woodcock’s RFC findings.
The ALJ asked the second non-examining agency medical expert,
Dr. Krishnamurthi, to attend the hearing, review the medical records, and testify
regarding Mrs. Shubargo’s RFC. Dr. Krishnamurthi testified that, based on the
medical records and the hearing testimony, Mrs. Shubargo could perform light
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work, with no restrictions on pushing, pulling, or reaching. The ALJ concluded
that Mrs. Shubargo can perform light work, including returning to her past light
work as a housekeeper.
Citing Clifton, 79 F.3d at 1010 (stating that an ALJ “must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects”), and Doyal, 331 F.3d at 764 (noting that Social
Security rulings provide that medical source opinions “must never be ignored”)
(quotation marks omitted), Mrs. Shubargo asserts that the ALJ erred in failing to
consider and discuss Dr. Woodcock’s RFC report stating that she can perform
only sedentary work. She further contends that, had the ALJ accepted
Dr. Woodcock’s opinion that she can perform only sedentary work, given her age,
lack of transferrable skills, and illiteracy, the Medical-Vocational Guidelines
direct a finding of disability. See 20 C.F.R. pt. 404, subpt. P, app. 2
§ 201.00(h)(1) (providing that “a finding of ‘disabled’ is warranted for
individuals age 45-49 who . . . [a]re restricted to sedentary work, . . . [a]re
unskilled or have no transferable skills, . . . can no longer perform past relevant
work, and . . . [a]re unable to . . . read or write in English”).
Under 20 C.F.R. § 416.927(f)(2)(i) and (ii), an ALJ “must consider findings
of State agency medical . . . consultants . . . as opinion evidence, except for the
ultimate determination about whether you are disabled,” and, “[u]nless the
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treating source’s opinion is given controlling weight, the administrative law judge
must explain in the decision the weight given to the opinions of a State agency
medical . . . consultant . . . .” The Commissioner asserts that, because of the
discrepancies in the medical opinions from state agency experts, the ALJ engaged
Dr. Krishnamurthi to assist him in resolving the issue of Mrs. Shubargo’s RFC
capacity. But the Commissioner does not contend that the ALJ had no duty to
discuss Dr. Woodcock’s medical opinion, and the agency requires ALJs to weigh
all medical source opinion evidence and explain in their decision why they rely on
a particular non-examining agency expert’s opinion when opinions are
conflicting. See § 404.1527(f); Hamlin, 365 F.3d at 1223 (“If an ALJ intends to
rely on a nontreating physician or examiner’s opinion, he must explain the weight
he is giving to it.”). We conclude that this case must be remanded for the ALJ to
consider and discuss Dr. Woodcock’s medical opinion and to explain why he
rejected it in favor of other non-examining consultative opinions. See Clifton, 79
F.3d at 1009-1010 (explaining that courts “should not properly engage in the task
of weighing evidence in cases before the Social Security Administration” and
remanding for ALJ to weigh evidence and give reasons for rejecting medical
evidence).
We reject, however, Mrs. Shubargo’s contention that the ALJ also erred by
failing to discuss a statement by an agency clerk that Mrs. Shubargo had difficulty
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understanding, concentrating, and maintaining coherency during an interview. In
the note explaining the three checkmarks placed in boxes with those headings, the
clerk explained that Mrs. Shubargo “stated that she was mentally retarded and did
have trouble remembering dates and names.” Aplt. App. Vol. 2 at 355. The ALJ
listened to Mrs. Shubargo’s testimony and considered the opinions of
psychological and medical experts who later opined that she is able to follow
simple instructions; that she is only moderately limited in the ability to work with
instructions and interact appropriately with the public; and that she has only mild
difficulties in the areas of concentration, persistence, and pace. An ALJ is not
required to discuss every piece of evidence that he rejects; he must only discuss
evidence that is “significantly probative.” Clifton, 79 F.3d at 1010. In light of
the uncontroverted opinion evidence garnered from psychologists and the clerk’s
explanation, the clerk’s observations were not significantly probative and the ALJ
was not required to discuss why he did not rely on them.
In conclusion, because the ALJ did not state whether he considered
Dr. Woodcock’s medical opinion that Mrs. Shubargo is capable only of sedentary
work and did not weigh the medical experts’ conflicting opinions, this case must
be remanded to the Commissioner. The remand is for the limited purpose of
reconsidering whether Mrs. Shubargo is disabled in light of Dr. Woodcock’s RFC
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evaluation and the applicable medical-vocational guidelines, and to issue a
decision explaining the weight he gives the conflicting medical opinions.
The judgment of the district court is REVERSED with instructions to
remand to the Commissioner for further development consistent with this order
and judgment.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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