Wise v. Massanari , 42 F. App'x 331 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 9 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANITA WISE,
Plaintiff - Appellant,
v. No. 01-3222
(D.C. No. 98-CV-4138-RDR)
JO ANNE B. BARNHART, * (D. Kansas)
Commissioner of Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT **
Before SEYMOUR , PORFILIO , and BALDOCK , 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
*
On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee in this action
**
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Claimant Anita Wise appeals an order of the district court denying Social
Security disability insurance benefits. She applied for benefits in 1993, which
application was denied initially and upon reconsideration. After a hearing, the
administrative law judge (ALJ) concluded that she could return to her past work
as a courtesy clerk/grocery sacker and janitor, denying benefits at step four of the
applicable analysis. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.
1988) (detailing steps). The Appeals Council affirmed the ALJ’s decision and
claimant then filed suit in federal court. The district court affirmed the ALJ’s
conclusion that claimant was not disabled during the relevant period.
This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291and 42 U.S.C. § 405(g). We review the agency’s decision on the whole record to
determine only whether the factual findings are supported by substantial evidence
and the correct legal standards were applied. Goatcher v. United States Dep’t of
Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh
the evidence or substitute our judgment for that of the agency. Casias v. Sec’y of
Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991).
On appeal, claimant first argues that the ALJ ignored repeated
documentation about her alleged mental limitations, including opinions by
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treating psychologists 1
and consulting psychiatrists and psychologists. Claimant
notes that, in response to a hypothetical posed by the ALJ which contained these
alleged limitations, the vocational expert opined she would be unemployable.
A review of the ALJ’s opinion leads us to reject these arguments.
The ALJ properly evaluated claimant’s allegations of mental limitations.
His opinion summarized and discussed all of the medical evidence regarding
claimant’s diagnosed mental conditions and treatment. The ALJ gave specific,
legitimate reasons for rejecting the opinions of two consulting sources,
Dr. Frieman and Dr. Shelton, as inconsistent with the record as a whole, relying in
part on the testimony of a medical expert at the hearing and in part on the opinion
of another consulting source, Dr. Voth. Based on the consistent medical evidence
in the record, and the medical expert’s opinions, the ALJ filled out a Psychiatric
Review Technique Form (PRT), concluding that, although claimant had an
organic mental disorder (specific learning disability) and an affective disorder
(depression), those mental conditions did not result in limitations that
substantially affected her ability to work. Further, the ALJ found claimant’s
complaints of mental limitations not wholly credible; noting that, in contradiction
1
Contrary to counsel’s assertion, the treating sources he discusses in making
this challenge were not psychologists, but therapists. The therapists were
supervised by psychologists, who signed the therapy reports, but there is no
evidence that the doctors ever treated claimant.
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to claimant’s testimony that she had problems with people, there was evidence
that claimant attended church several times each week, did religious visiting, and
showed people around a mobile home court managed by her husband. The ALJ’s
conclusions in the PRT are supported by substantial evidence in the record.
Accordingly, the ALJ was not bound by the VE’s opinion that claimant was
unemployable in answer to a hypothetical question that included alleged mental
limitations the ALJ concluded did not exist. See Bean v. Chater , 77 F.3d 1210,
1214 (10th Cir. 1995).
Claimant asserts that the ALJ failed to make findings about the mental
demands of her past work, as required by Social Security Ruling 82-62 and
applicable case law, specifically Winfrey v. Chater , 92 F.3d 1017 (10th Cir.
1996), and Henrie v. United States Department of Health & Human Services ,
13 F.3d 359 (10th Cir. 1993). However, as noted above, the ALJ concluded that
claimant’s mental conditions did not significantly impair her ability to work.
Because the ALJ is required to make findings “about those work demands which
have a bearing on the medically established limitations,” Winfrey , 92 F.3d at 1024(quoting SSR 82-62), he did not err in failing to inquire into the mental health
demands of claimant’s past work where there were no such limitations. This
argument also lacks merit.
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Claimant contends that her past employment as a courtesy clerk/grocery
sacker and janitor does not qualify as past relevant work because she performed
those jobs only part-time. Counsel offers no legal authority for this proposition,
and applicable authority leads us to conclude otherwise. “Past relevant work is
defined as work that (1) occurred within the past fifteen years . . . , (2) was of
sufficient duration to enable the worker to learn to do the job . . . , and (3) was
substantial gainful employment.” Jozefowicz v. Heckler , 811 F.2d 1352, 1355
(10th Cir. 1987); see also 20 C.F.R. § 303.1565. Substantial gainful employment
may include part time work. 20 C.F.R. §§ 404.1572(a).
Claimant also argues that her past work as she performed it required her to
lift fifty pounds, in contradiction to the vocational expert’s testimony that those
jobs were classified at a light exertional level. However, the issue is not whether
claimant can return to her actual past job, but to the type of work she performed
in the past. See Andrade v. Sec’y of Health & Human Servs. , 985 F.2d 1045, 1051
(10th Cir. 1993). Finally, claimant contends that the vocational expert’s
testimony that these jobs were performed at the light exertional level conflicts
with the opinion of a state disability examiner and the Dictionary of Occupational
Titles. Counsel did not raise these arguments before the district court in
challenging the agency’s decision, and therefore we decline to address them.
See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
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Claimant raises the following additional arguments on appeal: 1) the ALJ’s
conclusions on the Psychiatric Review Technique Form attached to his opinion
were not supported by the record; and 2) the ALJ violated the treating physician
rule, see Goatcher , 52 F.3d at 289-90, by ignoring reports from treating
psychologists. We decline to address these arguments because they were not
presented to the district court. See Crow , 40 F.3d at 324.
Claimant also challenges the district court’s decision. She contends that
the district court improperly relied on the term “fair” when used by the consulting
examiners in evaluating limitations caused by claimant’s mental conditions. As
noted above, the ALJ rejected the reports by Doctors Frieman and Shelton.
Claimant argues that the report by Dr. Voth, cited by the district court, cannot
serve as substantial evidence because it was a checklist. This argument is belied
by the record, which contains, in addition to the medical assessment form filled
out by Dr. Voth, a narrative history containing his findings and conclusions about
claimant’s mental status. Claimant’s complaint that Dr. Voth’s opinions, based
on a single interview, cannot serve as substantial evidence, is meritless. The
ALJ’s conclusions did not solely rely on Dr. Voth’s opinions, but on other
substantial evidence in the record, as discussed above.
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The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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