Conger v. Astrue ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 30, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOHN W. CONGER,
Plaintiff-Appellant,
No. 11-5046
v. (D.C. No. 4:10-CV-00102-TCK-TLW)
(N.D. Okla.)
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
John W. Conger appeals from the denial of his application for supplemental
security income benefits under Title XVI of the Social Security Act. We have
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. Background
Because the parties are familiar with the facts, we only briefly summarize
them. Mr. Conger applied for benefits in December 2005, alleging he was unable
to work because of degenerative disk disease, spondylosis, arthritis, depression,
and problems sleeping. His application was denied at the administrative level
after a hearing before an administrative law judge (ALJ). The ALJ found that
Mr. Conger’s impairments of degenerative disc disease, depression and alcohol
abuse were severe but that none of his impairments, either alone or in
combination, met or equaled one of the listings. Aplt. App., Vol. II at 43. The
ALJ further found that Mr. Conger had the residual functional capacity (RFC) to
perform simple and routine medium exertional work that required no more than
occasional stooping and no contact with the public. Id. at 44.
A vocational expert (VE) testified at the hearing that Mr. Conger could still
perform work existing in significant numbers in the national economy, including
as examples, hand packer, dishwasher, bench assembler, motel housekeeper, and
semiconductor assembler. Id. at 75-78. Relying on this testimony and medical
opinions, the ALJ denied benefits at step five of the sequential evaluation process.
See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing five-step
evaluation process).
After the Appeals Council denied his request for review, Mr. Conger filed
his complaint in the district court. The district court adopted the report and
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recommendation of the magistrate judge and affirmed the Commissioner’s denial
of benefits. Mr. Conger now appeals.
II. Discussion
In reviewing the ALJ’s decision, we neither reweigh the evidence nor
substitute our judgment for that of the agency. Instead, we review
the ALJ’s decision only to determine whether the correct legal
standards were applied and whether the ALJ’s factual findings are
supported by substantial evidence in the record. Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. A decision is not based on
substantial evidence if it is overwhelmed by other evidence in the
record or if there is a mere scintilla of evidence supporting it.
Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (citations and internal
quotation marks omitted). Mr. Conger raises four issues: whether the ALJ
properly (1) evaluated the medical source opinions; (2) assessed his RFC;
(3) found that he could perform other work; and (4) evaluated his subjective
complaints. Mr. Conger also asserts claims of error by the magistrate judge. We
independently review whether the ALJ’s decision is free from legal error and
supported by substantial evidence. See Wall, 561 F.3d at 1052. Thus, although
we have considered these arguments in the context of evaluating his claims that
the ALJ erred, we do not specifically address his claims alleging error by the
magistrate judge.
A. Consideration of Medical Source Opinions
Mr. Conger relied, among other things, on a report from his case worker at
Family and Children Services (FCS), Nicole Hudson, who saw him in connection
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with his mental health treatment. Ms. Hudson, who is not a physician and has
only a bachelor of arts degree, submitted a medical source statement that
Mr. Conger was “moderately limited” in his ability to work with others without
being unduly distracted, accept instructions and criticisms from supervisors, get
along with co-workers, respond appropriately to changes in a routine work
setting, and deal with normal work stress. Aplt. App., Vol. III at 518. According
to Mr. Conger, the ALJ erred in giving little weight to Ms. Hudson’s statement.
In his opinion, the ALJ considered Ms. Hudson’s statement in its entirety.
Id., Vol. II at 47-48. He gave three reasons for giving her statement little weight:
(1) it appeared Ms. Hudson relied on Mr. Conger’s own descriptions of his
symptoms and limitations, which the ALJ determined were not fully credible;
(2) the physician at FCS would not sign off on Mr. Conger’s requested Medical
Source statement because she had only treated him for a limited period of time;
and (3) the medical treatment Mr. Conger received at FCS was not consistent with
a disabling mental condition. Id. at 51.
A mental health case worker, such as Ms. Hudson, is not an acceptable
medical source, as defined in 20 C.F.R. § 416.913(a). Instead, she is classified as
an “other source” whose evidence can be considered to show the severity of a
claimant’s impairment and how it affects his ability to work. Id. § 416.913(d).
Opinion evidence from “other sources” is evaluated using the factors outlined in
20 C.F.R. § 416.927(d), as explained in further detail in Social Security Ruling
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06-03p, 2006 WL 2329939 (Aug. 9, 2006). The factors include: (1) the length of
time the source has known the claimant and how frequently the source has seen
the claimant; (2) the consistency of his opinion with other evidence; (3) whether
there is there relevant evidence to support the opinion; (4) how well the opinion is
explained; (5) the source’s qualifications; and (6) any other factors that tend to
support or detract from the opinion. SSR 06-03p, 2006 WL 2329939, at *4-5.
(applying factors in 20 C.F.R. § 416.927(d), used to evaluate opinion evidence
from acceptable medical sources, to opinion evidence from other sources).
The ALJ did state that he had considered all of the medical source
testimony in accordance with the requirements of the applicable Social Security
regulations. The ALJ did not expressly mention SSR 06-03p, or the factors
articulated therein, but we do not require an explicit discussion of the factors in a
decision. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). The
regulations require an ALJ to “give good reasons” in a decision as to the weight
applied to a treating physician’s opinion. 20 C.F.R. § 416.927(d)(2). But to
trigger this requirement, Ms. Hudson must have been a treating physician.
Because she was not, the ALJ did not have to explain the reasons for the weight
he gave Ms. Hudson’s opinion, although he did so; instead he need only have
considered the opinion, which he also did. See Doyal v. Barnhart, 331 F.3d 758,
764 (10th Cir. 2003).
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Substantial evidence supports the ALJ’s finding that Ms. Hudson’s opinion
about Mr. Conger’s limitations was not consistent with the routine care
Mr. Conger received at FCS. See Aplt. App., Vol. III at 291-373, 453-83, 520-39,
555; see also 20 C.F.R. § 416.927(d)(4) (consistency with the record as a whole)
and SSR 06-03p, 2006 WL 2329939, at *4 (same). Further, Ms. Hudson’s
opinion was unsupported by any explanation or any medical or clinical findings.
See Aplt. App., Vol. III at 518-19; see also 20 C.F.R. § 416.927(d)(3) (support for
opinion) and SSR 06-03p, 2006 WL 2329939, at *4 (degree to which the source
presents relevant supporting evidence and how well the source explains the
opinion). This, together with the evidence that Ms. Hudson’s opinion is not
consistent with the medical record as a whole, supports the ALJ’s finding that
Ms. Hudson’s opinion appeared to be based on Mr. Conger’s subjective
complaints. Thus, we conclude that the ALJ’s analysis of Ms. Hudson’s opinion
is supported by substantial evidence and free from legal error. 1
Mr. Conger also argues that the ALJ failed to explain why he gave great
weight to the state agency medical consulting physicians and psychologists’
assessment of his limitations. Regulations require that an ALJ consider the
1
Given this holding, we need not consider Mr. Conger’s assertion that the
VE testified that Mr. Conger would not be able to maintain employment if he had
the work limitations described by Ms. Hudson. Moreover, Mr. Conger misstates
the VE’s testimony, who testified that an individual with such limitations “may”
have some problems keeping a job, but would be able to get a job, and that these
limitations would not preclude employment. Aplt. App., Vol. II at 80-81.
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opinions of non-examining physicians, including state agency psychological
consultants. 20 C.F.R. § 416.927(f). Contrary to Mr. Conger’s assertion, the ALJ
did explain why he gave these opinions great weight, stating he did so because
their medical evidence and opinions were consistent with the overall evidence of
Mr. Conger’s RFC and because the agency physicians are experts in assessing the
physical and mental limitations that reasonably flow from a medical condition.
Mr. Conger contends these consulting opinions were not based on a complete
review of the evidence, but we find no record support for this assertion.
Accordingly, we conclude the ALJ properly considered the medical source
testimony, including the other source opinion of Ms. Hudson.
B. RFC Determination
Mr. Conger next claims that the ALJ’s RFC determination is flawed
because, although the ALJ summarized all of the medical and non-medical
evidence, he failed to identify specifically the evidence that he relied upon to
reach his RFC determination. We disagree, holding that the ALJ’s discussion of
the evidence and his reasons for his RFC determination demonstrate that he
considered all of Mr. Conger’s impairments and that his RFC determination was
supported by substantial evidence.
In his decision, the ALJ wrote nearly seven pages about the evidence he
considered in reaching his RFC determination. Aplt. App., Vol. II at 44-51. The
ALJ stated that he reached his RFC determination “[a]fter careful consideration of
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the entire record.” Id. at 44. An ALJ is not required to discuss every piece of
evidence so long as the record demonstrates that he considered all of the
evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). We will
generally find the ALJ’s decision adequate if it discusses the “uncontroverted
evidence” the ALJ chooses not to rely upon and any “significantly probative
evidence” the ALJ decides to reject. Id. at 1010. “Where, as here, the ALJ
indicates he has considered all the evidence our practice is to take the ALJ at his
word.” Wall, 561 F.3d at 1070 (internal quotation marks and alteration omitted)
In particular, Mr. Conger argues the ALJ failed to explain how he
determined that Mr. Conger could perform medium exertional activity, which
requires lifting fifty pounds and standing or walking for approximately six hours
in an eight-hour day, given that Mr. Conger testified he could not lift more than
eight pounds and could only walk for fifteen minutes before needing to rest.
Mr. Conger further argues the ALJ’s RFC determination did not take into account
his complaints of arm and hand numbness and shoulder pain and his testimony
that he could not grasp objects with his non-dominant left hand.
The evidence that Mr. Conger cannot lift more than eight pounds and can
only walk for fifteen minutes are based on Mr. Conger’s own testimony. The
ALJ’s credibility determination of Mr. Conger’s subjective complaints informs
our review of the ALJ’s conclusions as to Mr. Conger’s RFC. See Poppa v.
Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (“Since the purpose of the
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credibility evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s
credibility and RFC determinations are inherently intertwined.”). As discussed in
Part D below, the ALJ found that Mr. Conger’s subjective complaints were not
fully credible and we conclude his credibility determination is supported by
substantial record evidence.
It is clear that the ALJ based his RFC in part upon the findings of the
state-agency medical consultant Dr. Mungul, who opined that Mr. Conger could
perform medium exertional work and could occasionally lift fifty pounds,
frequently lift twenty-five pounds, stand and walk for six hours in an eight-hour
work day. Aplt. App., Vol. III at 446-47. The ALJ further relied upon the
evidence from Dr. Nodine, who found, after a physical examination, that
Mr. Conger’s straight leg test was negative in both the supine and sitting position,
that he had normal heel and toe walking, was able to heel and toe walk normally
and walked at a normal and steady gait without an assistive device. Id. at 412,
414-16. Further, the ALJ mentioned records from FCS noting that Mr. Conger
walked two miles to and from his medical appointment. Aplt. App., Vol. II at 47.
The ALJ’s RFC assessment is consistent with, and supported by, this evidence.
Mr. Conger notes that Dr. Nodine documented reduced flexion of his left
thumb and right wrist, and reduced range of motion in his neck. He argues the
ALJ failed to consider these limitations. Contrary to Mr. Conger’s description of
Dr. Nodine’s report, Dr. Nodine documented only slightly reduced range of
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motion in Mr. Conger’s neck, back, right wrist and left thumb, but full range of
motion in all other joints, and Dr. Nodine stated that Mr. Conger had full bilateral
grip strength and could effectively oppose his thumb to his fingertips, manipulate
small objects and effectively grasp tools such as a hammer. Aplt. App., Vol. III
at 412-16. We conclude that the ALJ’s RFC determination was based upon an
adequate consideration, and accurate discussion, of Dr. Nodine’s findings.
As to his mental impairments, Mr. Conger argues the ALJ failed to consider
the findings of Dr. Rawlings, who noted that his activities of daily living and
social functioning were limited by chronic pain, depression and fatigue. Again,
Mr. Conger only partially describes Dr. Rawlings’ findings. In quantifying the
degree of these limitations, Dr. Rawlings assigned Mr. Conger a Global
Assessment of Functioning score of 55-65, id. at 424, which indicates his finding
that Mr. Conger’s limitations caused no more than mild to moderate difficulty.
See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
32-34 (4th ed. 2000). Further, Dr. Rawlings found that Mr. Conger’s recent and
remote memory, mental control, attention span, working memory, judgment and
insight into problems were all intact. Aplt. App., Vol. III at 423. The ALJ
considered Dr. Rawlings’ report at length, id., Vol. II at 48, and his RFC findings
of moderate restrictions of Mr. Conger’s activities of daily living and social
functioning are consistent with, and supported by, Dr. Rawlings’ evidence.
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We find no error in the ALJ’s RFC finding. The ALJ’s decision contains a
discussion of the medical evidence he considered in finding that Mr. Conger
retained the RFC to perform simple and routine medium exertional work that
requires no more than occasional stooping, and no contact with the public. Our
review of the record indicates that this RFC determination is consistent with the
medical evidence, and thus, that the ALJ’s finding is supported by substantial
evidence.
C. Perform Other Work
Mr. Conger next claims that the ALJ erred in finding that he could perform
other work in the national economy. He asserts that there are some conflicts
between the VE’s testimony and the Dictionary of Occupational Titles (DOT)
and, therefore, the ALJ erred in relying upon the VE’s testimony without first
resolving the conflicts. “If the ALJ concludes that the claimant cannot perform
any of his past work with his remaining RFC, the ALJ bears the burden at step
five to show that there are jobs in the regional or national economies that the
claimant can perform with the limitations the ALJ has found him to have.”
Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). “[T]he ALJ must
investigate and elicit a reasonable explanation for any conflict between the [DOT]
and expert testimony before the ALJ may rely on the expert’s testimony as
substantial evidence to support a determination of nondisability.” Id. at 1091.
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The government concedes that there is an apparent conflict between the
ALJ’s RFC determination and the VE’s testimony that Mr. Conger could work as
a dishwasher and a semiconductor assembler and that the ALJ should have
elicited testimony from the VE about these apparent conflicts. The government
concedes that dishwasher job requires frequent stooping and the semiconductor
assembler job requires a reasoning level of three, and that these requirements do
not appear to be consistent with Mr. Conger’s RFC.
We conclude, however, that no remand is necessary. The VE explicitly
stated that other occupations would be available to an individual with
Mr. Conger’s RFC and that she was simply providing occupational examples.
Aplt. App., Vol. II at 76. Thus, her testimony was not intended to provide a
complete list of occupations available to an individual with Mr. Conger’s
limitations. In addition to the dishwasher and semiconducter assembler examples,
the VE also identified the jobs of hand packer, bench assembler and motel
housekeeper. Id. at 78. Inconsistencies are not present as to these other examples
of jobs that the VE listed. The VE testified that nationally there are
approximately 265,000 hand picker jobs, 600,000 bench assembler jobs and
180,000 motel housekeeper jobs. Id. at 76. The evidence of these occupations is
sufficient for the ALJ to find that Mr. Conger can perform specific occupations
encompassing a significant number of available jobs. See Evans v. Chater,
55 F.3d 530, 532 (10th Cir. 1995) (citing 20 C.F.R. § 404.1566(b) (“Work exists
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in the national economy [for step-five purposes] when there is a significant
number of jobs (in one or more occupations) having requirements which [the
claimant is] able to meet . . . .”) (emphasis added)).
We further find, contrary to Mr. Conger’s assertion, that in asking
hypothetical questions to the VE, the ALJ did incorporate all of the mental
functioning limitations found by the state agency mental consultants. Compare
Aplt. App., Vol. II at 75, 77 (hypothetical questions) with id. at Vol. III at 443,
516 (assessment of Mr. Conger’s mental RFC). We conclude that Mr. Conger has
not demonstrated that the ALJ erred in concluding that there were a significant
number of jobs he could perform in the national economy.
D. Credibility Determination
Finally, Mr. Conger argues that the ALJ failed to perform a proper
credibility determination. “Credibility determinations are peculiarly the province
of the finder of fact, and we will not upset such determinations when supported
by substantial evidence.” Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774,
777 (10th Cir. 1990). Credibility findings must “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) (internal quotation marks
omitted). Factors the ALJ may consider in assessing a claimant’s complaints
include “the levels of medication and their effectiveness, the extensiveness of the
attempts . . . to obtain relief, the frequency of medical contacts, the nature of
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daily activities, subjective measures of credibility that are peculiarly within the
judgment of the ALJ, . . . and the consistency or compatibility of nonmedical
testimony with objective medical evidence.” Id.The ALJ found that Mr. Conger’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not credible to the extent
they are inconsistent with the [already established] residual functional capacity
assessment.” Aplt. App., Vol. II at 46. The ALJ then discussed all of the factors
and evidence he relied upon in discounting Mr. Conger’s credibility. Id. at 46-51.
The ALJ recited all of the medical treatment notes and medical records and
concluded that they did not support Mr. Conger’s subjective complaints. The ALJ
noted discrepancies between Mr. Conger’s alleged symptoms and the objective
documentation in the record. The ALJ noted Dr. Rawlings’ observation that
Mr. Conger gave self-contradictory statements during his psychological
examination. Mr. Conger reported that he could not walk more than one or two
blocks without resting, but the ALJ noted that he told his doctor that he walked
two miles to his appointment and that Dr. Nodine and Dr. Jennings both found
that Mr. Conger was able to walk normally without an assistive device. The ALJ
further noted that Mr. Conger received essentially routine and conservative
medical care, which was not indicative of disabling impairments. See Wall,
561 F.3d at 1068-69 (holding that a history of conservative medical treatment
undermines allegations of disabling symptoms).
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Mr. Conger challenges the ALJ’s statement that his “allegedly limited daily
activities cannot be objectively verified with any reasonable degree of certainty.”
Aplt. App., Vol. II at 49. Mr. Conger argues that no ruling or regulations require
such verification. It is true that 20 C.F.R. § 416.929(c)(3)(i) does not require
verification; instead the regulations simply state that such evidence will be
evaluated “in relation to the objective medical evidence and other evidence.”
20 C.F.R. § 416.929(c)(4). In Wall, we determined that the statement that a
limitation was not objectively verified was merely the ALJ’s “common sense
observation that [he] would not treat Claimant’s testimony as ‘strong evidence’ of
her disability due to his prior determination that Claimant’s testimony was not
‘fully credible.’” Wall, 561 F.3d at 1070. As such, we rejected the claimant’s
assertion “that the ALJ evaluated Claimant’s credibility under an improper
[objectively-verified] standard.” Id. at 1069. The same is true here and we find
that the ALJ did not impose an incorrect standard of proof in evaluating
Mr. Conger’s credibility. Our independent review of the record reveals that the
ALJ closely and affirmatively linked his credibility determination to substantial
record evidence and that substantial evidence supports that determination.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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