Barber v. Astrue , 431 F. App'x 709 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 25, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DUANE K. BARBER,
Plaintiff-Appellant,
v. No. 10-5134
(D.C. No. 4:09-CV-00226-TLW)
MICHAEL J. ASTRUE, Commissioner (N.D. Okla.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH and BALDOCK, Circuit Judges, BRORBY, Senior
Circuit Judge.
Duane K. Barber appeals the Commissioner’s denial of benefits, claiming
an Administrative Law Judge (ALJ) failed to (1) properly consider his medical
source evidence; (2) include all his impairments in a hypothetical question posed
to a Vocational Expert (VE); and (3) properly assess his credibility. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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
Mr. Barber claimed he was disabled by schizophrenia or schizoaffective
disorder, borderline-intellectual functioning, antisocial-personality disorder,
attention-deficit disorder, oppositional-defiant disorder, depression, anxiety, and
bipolar disorder. His appellate brief describes an individual who surrendered to
aggressive impulses: As an adolescent, he threatened a teacher, was hospitalized
in October 2000 for anger and behavioral issues, and quit high-school. After his
alleged onset date, Mr. Barber spent time in prison for aggravated assault-and-
battery with a crowbar. He sought treatment but was dismissed from his doctor’s
practice for becoming enraged when his request for narcotics was denied. 1
Mr. Barber eventually applied for Supplemental Security Income, but the
ALJ concluded at step five of the five-step sequential evaluation process, see
20 C.F.R. § 416.920; Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(explaining the five-step process), that he was not disabled. The ALJ reasoned
that Mr. Barber possessed the residual functional capacity (RFC) to perform the
full range of work at all exertional levels, although he was limited to simple,
repetitive tasks in a habituated and object-oriented setting. The ALJ further
restricted Mr. Barber from intense interpersonal contact with coworkers and
supervisors, and all contact with the public. The Appeals Council denied review,
1
The record suggests there was some question of drug abuse during the
relevant time period, see, e.g., Aplt. App., Vol. 2 at 114, but Mr. Barber’s claims
are not based on any alleged impairment relating to drug use.
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and a magistrate judge, acting on the parties’ consent, affirmed. Mr. Barber then
brought his case to this court.
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.” Bowman v. Astrue, 511 F.3d 1270, 1272
(10th Cir. 2008) (quotation omitted). In conducting our review, “[w]e consider
whether the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence . . . , but we [do] 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).
A. Medical Source Evidence
Mr. Barber first contends the ALJ failed to properly evaluate the medical
source evidence. As we understand his argument, Mr. Barber maintains the same
step-three contention he made in the district court: that the ALJ failed to find he
satisfied a listed impairment by rejecting the opinion of Dr. Cynthia
Kampschaefer. 2 Dr. Kampschaefer, a non-treating agency physician, assessed
2
Mr. Barber does not clearly contest the ALJ’s step-three determination on
appeal, but instead broadly (and vaguely) frames his argument in terms of the
medical source evidence in general. In the district court, however, he specifically
challenged the ALJ’s treatment of the medical source evidence in the context of
the ALJ’s step-three determination. See, e.g., Aplt. App., Vol. 1 at 19, 20. Given
the nature of his argument in the district court, we presume Mr. Barber is not
(continued...)
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Mr. Barber’s mental impairments and believed he experienced moderate
limitations in his activities of daily living (ADLs); social functioning; and ability
to maintain concentration, persistence, and pace. See 20 C.F.R. § 416.920a(c).
Dr. Kampschaefer also determined that Mr. Barber experienced one or two
episodes of decompensation. See id. The ALJ agreed with Dr. Kampschaefer’s
assessment of Mr. Barber’s level of social function and concentration,
persistence, and pace, but found he had only mild limitations in his ADLs and
experienced no episodes of decompensation. Based on these latter differences of
opinion, Mr. Barber contends the ALJ rejected Dr. Kampschaefer’s opinion
without an adequate explanation.
Mr. Barber’s contention fails because the ALJ properly explained his
findings. Initially, the ALJ explained that Mr. Barber’s mild restrictions in ADLs
were supported by a function report indicating that he kept his room clean,
enjoyed music, frequently left the house, spoke to his friends on the telephone,
and visited friends at their homes. Likewise, the ALJ explained that Mr. Barber
experienced no episodes of decompensation because his October 2000
hospitalization preceded his alleged onset date, he responded well to medication
2
(...continued)
advancing a new argument on appeal and, accordingly, construe his argument in
the context of the ALJ’s step-three decision.
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after an altercation in prison, and his depression was stabilized with treatment. 3
Although the ALJ’s severity ratings differed from Dr. Kampschaefer’s opinion,
the ALJ ultimately endorsed her opinion in his final RFC assessment. Indeed,
Dr. Kampschaefer believed Mr. Barber could perform simple tasks and relate on a
superficial and incidental basis due to his problems with authority and aggression;
accordingly, the ALJ limited Mr. Barber to simple, repetitive work in a habituated
and object-oriented environment, with little or no interpersonal contact with
coworkers or the public. Under these circumstances, no further explanation was
necessary. See generally 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.”). In
fact, the need for detailed analysis is particularly diminished here, because even if
the ALJ had fully adopted Dr. Kampschaefer’s assessment, her severity ratings
3
Mr. Barber suggests the ALJ failed to consider other potential episodes of
decompensation, including the threat against his teacher, an alleged suicide
attempt in which he cut his wrists, an outburst at his doctor’s office, and his “jail
experience.” Aplt. Br. at 20. To satisfy the decompensation criterion of listings
12.05 and 12.08, Mr. Barber must have experienced “repeated episodes of
decompensation, each of extended duration,” that is, each episode of
decompensation must have lasted a minimum of two weeks. See 20 C.F.R., Pt.
404, Subpt. P, App. 1 § 12.00C(4). Nothing in the record indicates that any of
these alleged decompensation events lasted two weeks (assuming, of course, that
by “jail experience,” Mr. Barber means his actual commission of assault and
battery, rather than his incarceration, which was considered by the ALJ). Nor is
there evidence in the record concerning the medical impact of these events. And,
it appears from the record that at least one of these events—the threat against
Mr. Barber’s teacher—preceded the alleged onset date. See Aplt. App., Vol. 2 at
88. Consequently, the ALJ was not required to consider these other events.
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still fell short of the degree of limitation necessary to satisfy the listings’
functional criteria.
Mr. Barber makes a related argument that the ALJ should have rejected the
report of the consultative examiner, Dr. Denise LaGrand. Dr. LaGrand noted that
Mr. Barber had a “low average” ability to adequately perform at work, cope with
work-stress, and interact with coworkers and supervisors. Aplt. App., Vol. 2 at
109. The ALJ relied on this opinion to formulate his RFC assessment, but
Mr. Barber contends Dr. LaGrand’s report is unreliable because she did not make
a final diagnosis. This argument is unavailing because Dr. Kampschaefer
diagnosed Mr. Barber with antisocial behavior. Hence, as the district court
correctly explained, there was no need for a second diagnosis. See 20 C.F.R.
§ 416.919n(d).
B. Vocational Expert’s Hypothetical
Mr. Barber next contends the ALJ posed an inaccurate hypothetical
question to the VE. It is well settled that the hypothetical question posed to the
VE must precisely reflect all, but only, the impairments and limitations borne out
by the record. Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).
Dr. Kampschaefer found marked limitations in Mr. Barber’s ability to understand,
remember, and carry out detailed instructions, as well as his ability to interact
appropriately with the general public. She determined he had moderate
limitations in his ability to accept instructions and respond to criticism from
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supervisors, and get along with coworkers or peers without distracting them or
exhibiting extreme behavior. Based on these restrictions, the ALJ posed the
following hypothetical question: “I would like you to limit him to doing simple
repetitive tasks in a habituated work setting, which is also object oriented, with
no intense interpersonal contact with coworkers or supervisors, and no public
contact.” Aplt. App., Vol. 2 at 185. The ALJ’s question accurately reflected
Dr. Kampschaefer’s opinion. Mr. Barber contends the limitations were excluded
from his RFC, but the record disproves his point. See id. at 16 (“The claimant is
able to do simple, repetitive work in a habituated and object oriented setting. He
is not able to have intense interpersonal contact with co-workers or supervisors
and can have no public contact.”).
C. Credibility Analysis
Finally, Mr. Barber contends the ALJ improperly discredited his testimony.
“Credibility determinations are peculiarly the province of the finder of fact, and
we will not upset such determinations when supported by substantial evidence.”
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (quotation omitted).
An ALJ’s credibility determination must be “closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Hackett
v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (quotation omitted).
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The ALJ discredited Mr. Barber’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms . . . to the extent they [were]
inconsistent with the [RFC] assessment.” Aplt. App., Vol. 2 at 17. Among other
things, the ALJ noted that Mr. Barber claimed to have trouble sleeping but had
reported sleeping better after receiving medication in prison. Mr. Barber
contends this was only a temporary improvement, and we find nothing in the
record to suggest otherwise. A prison-doctor prescribed Elavil to help Mr. Barber
sleep. The medication enabled him to sleep better, but two months later, he
reported persistent sleep problems, and his dosage was again increased.
Mr. Barber was discharged from prison on the higher dose, but nothing in the
record indicates he continued taking Elavil or was sleeping well at the time of his
hearing.
Nonetheless, other evidence cited by the ALJ impeached Mr. Barber’s
credibility. The ALJ noted that Mr. Barber reported having low energy and an
inadequate diet to Dr. LaGrand, but he twice indicated to prison staff that he had
good energy and ate well. The ALJ also cited Mr. Barber’s prison discharge
summary, which stated he was stable on medication, but recognized this was
inconsistent with Mr. Barber’s claims of experiencing rage, depression, anger,
and anxiety. Further, the ALJ observed that although Mr. Barber claimed to
suffer from panic attacks, Dr. Darrell Mease, a treating physician, assessed only
generalized anxiety and bipolar disorder, not true panic attacks. Mr. Barber
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disputes this assessment, asserting Dr. Mease was uncertain whether he
experienced true panic attacks, but the doctor expressly stated that “[t]rue panic
attacks apparently do not occur.” Aplt. App., Vol. 2 at 158. The doctor then
assessed generalized anxiety and bipolar disorder, not panic attacks. In any
event, the ALJ finally noted that Mr. Barber also testified that he recently had
been fired from a job, but later stated that he stopped working. Given this
discussion, the ALJ adequately linked his credibility finding to substantial
evidence. 4
The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
4
Mr. Barber suggests the ALJ failed to properly assess the credibility of his
mother, who completed several forms for him. The ALJ discussed Mr. Barber’s
testimony, however, and observed that the answers his mother provided on the
forms were not a reliable source of Mr. Barber’s own allegations. There was no
error.
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