Arles v. Astrue , 438 F. App'x 735 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 28, 2011
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
TIMOTHY L. ARLES,
Plaintiff-Appellant,
v. No. 11-7024
(D.C. No. 6:09-CV-00471-FHS-KEW)
MICHAEL J. ASTRUE, Commissioner (E.D. Okla.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
Timothy L. Arles appeals from a judgment of the district court affirming
the Commissioner’s denial of his application for supplemental security income
benefits (SSI). We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
I.
An Administrative Law Judge (ALJ) denied Mr. Arles’s request for benefits
at the last step of the five-step sequential process for determining disability.
See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). 1 At the time of
the hearing before the ALJ, Mr. Arles was 44 years old and weighed 329 pounds.
He testified about his difficulties with cramping and swelling hands after carpal-
tunnel surgery, swollen knees, a painful left foot, daily migraine headaches, neck
pain, loss of near vision from glaucoma, low-back problems, and an ache from a
rupture in his stomach. He stated that medical providers have prescribed eye
drops for his diagnosed low-tension glaucoma and also pain pills, sleeping pills,
1
As this court has explained:
Step one requires a claimant to establish [he] is not engaged in
substantial gainful activity. Step two requires the claimant to
establish [he] has a medically severe impairment or combination of
impairments. Step three asks whether any medically severe
impairment, alone or in combination with other impairments, is
equivalent to any of a number of listed impairments so severe as to
preclude substantial gainful employment. If listed, the impairment is
conclusively presumed disabling. If unlisted, the claimant must
establish at step four that [his] impairment prevents [him] from
performing work [he] has previously performed. If the claimant is
not considered disabled at step three, but has satisfied [his] burden of
establishing a prima facie case of disability under steps one, two, and
four, the burden shifts to the Commissioner to show the claimant has
the residual functional capacity (RFC) to perform other work in the
national economy in view of [his] age, education, and work
experience.
Fischer-Ross, 431 F.3d at 731 (citations and internal quotation marks omitted).
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nerve pills, arthritis pills, and high-blood-pressure pills. Mr. Arles further related
that he does not take any of these medications or seek medical care because he
lacks financial resources. He does take over-the-counter acetaminophen and
occasionally a pain pill offered by a friend. Mr. Arles explained he has difficulty
sleeping at night and needs to take cat naps during the day. He spends about half
the day with his feet up, watching television and smoking a cigarette.
Because Mr. Arles had worked for only two months since 1996, the ALJ
began his analysis at step two of the process. At that step, the ALJ found that
Mr. Arles had the severe physical impairments of carpal-tunnel syndrome, ankle
deformity, and obesity. Based on his review of the medical records, however, he
determined that Mr. Arles’s headaches and glaucoma had only a minimal effect
on his ability to work and were not severe impairments.
At step three, the ALJ found that none of the identified impairments alone
or in combination met or equaled any listed impairment. The ALJ then assessed
Mr. Arles’s residual functional capacity (RFC) and determined that he could
perform a range of sedentary work, so long as it did not involve the constant use
of hands for repetitive tasks such as keyboarding. 2 Underlying the ALJ’s RFC
2
Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking
(continued...)
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assessment was a finding that Mr. Arles’s testimony on the extent of his
limitations was not entirely credible.
Mr. Arles had no past relevant work to consider, so the ALJ proceeded to
step five. For a finding on whether Mr. Arles could perform work in the national
economy, the ALJ relied on a vocational expert. In response to the ALJ’s
hypothetical question, the expert testified that an individual of Mr. Arles’s age,
educational level, vocational history, and the RFC found by the ALJ could
perform occupations such as order clerk, charge-account clerk, and optical-goods
assembler. These jobs existed in significant numbers in the regional and national
economy.
The ALJ therefore concluded that Mr. Arles was not entitled to SSI and
denied his application. The Appeals Council denied review, making the ALJ’s
decision the final agency decision. The district court affirmed. On appeal of the
district court’s ruling, Mr. Arles asserts that the Commissioner’s denial of
benefits must be reversed because the ALJ did not perform a proper credibility
determination. He also contends that throughout the sequential-evaluation
2
(...continued)
and standing are required occasionally and other sedentary criteria
are met.
20 C.F.R. § 416.967(a).
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process, the ALJ failed to give appropriate consideration to his restricted vision
and obesity.
II.
“We independently review the Commissioner’s decision to determine
whether it is free from legal error and supported by substantial evidence.”
Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011). We do “not reweigh the
evidence or substitute our judgment for the Commissioner’s.” Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). “[D]isability requires both an
inability to engage in any substantial gainful activity and a physical or mental
impairment, which provides reason for the inability.” Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks omitted).
A. Credibility Determination
Mr. Arles first contends that the ALJ improperly discounted his testimony.
“Credibility determinations are peculiarly the province of the finder of fact,”
though findings on credibility “should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (alteration and internal quotation marks
omitted). Our precedent, however, “does not require a formalistic
factor-by-factor recitation of the evidence so long as the ALJ sets forth the
specific evidence he relies on in evaluating the claimant’s credibility.” Poppa v.
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Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (alteration and internal quotation
marks omitted).
The ALJ made several explicit findings on Mr. Arles’s credibility. He
noted that no treating physician “place[d] any functional restrictions on
[claimant’s] activities that would preclude [modified] sedentary work activity,”
and “no objective evidence [showed] an impairment” that would justify his “self-
imposed” restriction of “stay[ing] in a recliner all day.” Admin. R., Vol. 2 at 14.
And reviewing Mr. Arles’s scant work history, the ALJ found “the evidence is
persuasive that the claimant is not motivated to work.” Id.
The ALJ noted the lack of medical evidence documenting some of
the ailments claimed by Mr. Arles, such as stomach rupture. As a counterweight
to Mr. Arles’s assertion that he could not afford medical care, the ALJ observed
that there was no evidence that Mr. Arles sought to obtain any low-cost care or
that he had been denied treatment because of his financial condition. The ALJ
further commented that Mr. Arles apparently could afford cigarettes.
Mr. Arles asserts the ALJ’s credibility determination is (1) inconsistent
with the record; (2) erroneous in its use of boilerplate language; (3) unfair in
discounting poverty as his reason for lack of medical treatment; and
(4) impermissibly speculative in designating his restricted daily activities as self-
imposed and in stating that he lacked motivation to work. We see little merit in
these arguments.
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According to Mr. Arles, the ALJ miscast the evidence on his knee
impairment and ignored his complaints of neck pain. The medical record does
allude to “generalized degenerative joint disease/osteoarthritis neck, low back and
knees,” Admin. R., Vol. 2 at 152, and “degenerative changes . . . in the cervical
spine,” id. at 180. Based on the record as a whole, however, these limited and
nonspecific references do not require reversal of the ALJ’s credibility decision.
The ALJ provided particularized reasons for discounting Mr. Arles’s testimony on
the extent of his knee and neck problems.
Mr. Arles’s remaining attacks on the ALJ’s credibility determination
warrant only summary discussion. Although boilerplate language may be
disfavored, it is insufficient to support a credibility determination “in the absence
of a more thorough analysis.” Hardman v. Barnhart, 362 F.3d 676, 679
(10th Cir. 2004) (italics added). Here, the ALJ engaged in a broad analysis of the
evidence relevant to Mr. Arles’s credibility. And “extensiveness of the attempts
(medical and nonmedical) to obtain relief” and “frequency of medical contacts”
are factors to be considered by ALJ in assessing credibility. See Kepler, 68 F.3d
at 391. “[I]nability to pay may provide a justification for [the] claimant’s failure
to seek treatment” if it is accompanied by evidence that the claimant sought and
was refused treatment. Threet v. Barnhart, 353 F.3d 1185, 1191 n.7 (10th Cir.
2003). As the ALJ noted, Mr. Arles submitted no evidence showing attempts to
obtain relief from his alleged “constant and disabling painful condition.”
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Admin. App., Vol. 2, at 14. Further, the ALJ’s comments about self-imposed
restrictions and lack of motivation to work are based on permissible inferences,
not speculation.
The ALJ’s decision “contain[s] specific reasons for the finding on
credibility, supported by the evidence in the case record” and is “sufficiently
specific to inform subsequent reviewers of both the weight the ALJ gave to a
claimant’s statements and the reasons for that weight.” Hayden v. Barnhart,
374 F.3d 986, 992 (10th Cir. 2004) (internal quotation marks omitted).
B. Consideration of claimant’s vision limitations and obesity during the
sequential evaluation process.
Mr. Arles also claims that the RFC determination, hypothetical question to
the vocational expert, and resulting step-five conclusion were flawed for failure to
give adequate consideration to his visual problems and obesity. The ALJ’s
credibility determination informs our review of his conclusions on Mr. Arles’s
RFC. See Poppa, 569 F.3d at 1171 (“Since the purpose of the credibility
evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s credibility and
RFC determinations are inherently intertwined.”).
Concerning Mr. Arles’s vision, the ALJ recognized that he had been
diagnosed with glaucoma, found the glaucoma “mild and treatable,” and
determined that it was not a severe impairment. Admin. R., Vol. 2 at 12. The
record reveals two instances in which Mr. Arles had his vision assessed. In
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September 2006, a doctor of optometry observed that Mr. Arles had glaucoma and
that his field of vision was “abnormal/worse” in his right eye “possibly because of
[decreased] vision.” Id. at 188. Notwithstanding this observation, the
optometrist’s chart showed that Mr. Arles had essentially normal distance visual
acuity, and contained no findings regarding “Near Point” vision. Id. The
following month, his general practitioner recorded Mr. Arles’s distance vision as
“bilateral 20/20.” Id. at 151. Nowhere in the medical record is there a report of
near-vision problems. 3
Mr. Arles contends that the ALJ should have taken a near-vision limitation
into account in his RFC determination and hypothetical question to the vocational
expert. See id. at 39; Aplt. Br. at 17. Because such a limitation has no support in
the record, the ALJ was not required to consider near-vision difficulties in
determining Mr. Arles’s RFC or in ascertaining the number of suitable jobs in the
national economy. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996)
(An ALJ’s questions to a vocational expert “must reflect with precision all of
3
On appeal, Mr. Arles makes a brief objection to the ALJ’s failure to explain
the relative weight given to the findings of the two eye specialists. Contrary to
Mr. Arles’s contention, the findings are consistent with each other, so the ALJ did
not “cho[o]se one opinion over another.” Aplt. Br. at 19. Thus, no detailed
explanation was necessary. Cf. Pisciotta v. Astrue, 500 F.3d 1074, 1077
(10th Cir. 2007) (stating that if an ALJ rejects or assigns less-than-controlling
weight to the opinion of a treating physician that is inconsistent with other
medical evidence, the ALJ must explain the reasons for his determination).
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[a claimant’s] impairments, but they need only reflect impairments and limitations
that are borne out by the evidentiary record.”) (citations omitted).
Mr. Arles further asserts that the ALJ failed to include his obesity in his
RFC determination. An ALJ must consider “the combined effects of obesity with
other impairments” and “evaluate each case based on the information in the case
record.” Titles II & XVI: Evaluation of Obesity, SSR 02-1p, 2000 WL 628049,
at **1, 6 (Sept. 12, 2002).
The ALJ could have provided a more particularized discussion of the
effects of Mr. Arles’s obesity on the weight-bearing joints of his knees and ankles
and his hand function. Nevertheless, the ALJ’s decision states that he examined
the medical records and found “no evidence of an inability to ambulate effectively
or an inability to perform fine and gross movements effectively.” Admin. R.,
Vol. 2 at 12. It also specifically states that “[t]he claimant’s obesity has been
evaluated under the criteria set forth in SSR 02-1p.” Id. This court’s “general
practice . . . is to take a lower tribunal at its word when it declares that it has
considered a matter.” Hackett, 395 F.3d at 1173. Moreover, Mr. Arles does not
discuss or cite to any evidence showing that obesity further limited his ability to
perform a restricted range of sedentary work. As the ALJ noted, two medical
experts with the State agency found that Mr. Arles could perform greater than
sedentary work activity. 20 C.F.R. § 416.927(f)(2)(i) (requiring ALJs to
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“consider findings and other opinions of State agency medical . . . consultants . . .
as opinion evidence”).
In sum, the ALJ’s decision provides an adequate discussion of the effect of
obesity on Mr. Arles’s RFC. See Howard v. Barnhart, 379 F.3d 945, 948
(10th Cir. 2004) (requiring a decision to “discuss possible ramifications of [a
claimant’s] obesity”). Further, the ALJ’s conclusion that obesity did not interfere
with Mr. Arles’s ability to perform a restricted range of sedentary work is
supported by substantial evidence. 4
III.
The judgment of the district court is AFFIRMED.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4
In a partially developed argument, Mr. Arles claims that at step three the
ALJ should have considered an additional musculoskeletal listing in light of his
obesity. No “remand for a more thorough discussion of the listings” is required
“when confirmed or unchallenged findings made elsewhere in the ALJ’s decision
confirm the step-three determination under review.” Fischer-Ross, 431 F.3d at
734.
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