Boehm v. Astrue ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2013
Elisabeth A. Shumaker
Clerk of Court
MICHAEL B. BOEHM,
Plaintiff-Appellant,
v. No. 12-5102
(D.C. No. 4:10-CV-00818-PJC)
MICHAEL J. ASTRUE, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before KELLY, McKAY, and O’BRIEN, Circuit Judges.
Michael B. Boehm appeals the Commissioner’s denial of disability and
supplemental security income benefits, claiming an administrative law judge (“ALJ”)
incorrectly evaluated the medical source evidence, wrongly discredited his testimony,
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
and inaccurately presented his limitations to a vocational expert (“VE”). We have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm.
I
Mr. Boehm was injured in a logging accident and then again while lifting a
beam at work. Various diagnostic tests and physicians confirmed that Mr. Boehm
had degenerative disc disease and an annular tear at L5-S1 disc. Due to the bad disc
in his back, Mr. Boehm applied for disability, complaining also of leg pain, difficulty
sleeping, and vision problems. His applications were denied initially and on
reconsideration, and after a hearing, an ALJ determined at step five of the five-step
sequential evaluation process, see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step process),
that Mr. Boehm was not disabled because he retained the residual functional capacity
(“RFC”) to perform light work subject to certain restrictions. In particular, the ALJ
restricted Mr. Boehm from climbing ladders, ropes, and scaffolding, and limited him
to no more than occasional stooping. The Appeals Council denied review, and a
magistrate judge, presiding pursuant to 28 U.S.C. § 636(c)(1), affirmed the
Commissioner’s decision.
Now on appeal, Mr. Boehm contends the ALJ failed to correctly evaluate the
medical source evidence, assess his credibility, and state his limitations in a
hypothetical question to the VE. “We independently review the Commissioner’s
decision to determine whether it is free from legal error and supported by substantial
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evidence.” Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011). Upon
reviewing the record and the relevant legal authorities, we perceive no reversible
error.
II
A. Medical Source Evidence
Mr. Boehm first claims the ALJ incorrectly evaluated the medical source
evidence, particularly the opinions of his treating physician, Dr. Walter Edwards. A
treating physician’s opinion is accorded controlling weight “if it is well-supported by
medically acceptable clinical or laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Id. at 1330. But “[i]f the
opinion is deficient in either of these respects, it is not to be given controlling
weight.” Id.As a treating physician, Dr. Edwards’ opinion was entitled to deference. And
to be sure, some of his opinions were supported by the evidence. But as the ALJ
observed, Dr. Edwards also offered several opinions that conflicted with regard to the
extent of Mr. Boehm’s functional restrictions and his ability to work. Specifically, in
September 2009, Dr. Edwards completed a functional capacity assessment that
indicated Mr. Boehm could sit and stand for two to three hours in an eight-hour work
day, and frequently lift fifteen pounds. The very next month, however, in October
2009, Dr. Edwards completed another assessment indicating that Mr. Boehm could
only sit, stand, and walk for ten to thirty minutes in an eight-hour day, and could only
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occasionally lift between eleven and twenty pounds. Dr. Edwards offered no
explanation for this sudden deterioration in Mr. Boehm’s capabilities; he simply
checked spaces indicating that Mr. Boehm was entirely unable to bend, squat, crawl,
climb, reach, handle or finger with either hand, be near moving machinery, or drive,
among other things. And citing his previous records, he wrote that Mr. Boehm was
completely disabled. Yet Dr. Edwards’ previous note from March 2008, when he last
saw Mr. Boehm some eighteen months earlier, indicated that Mr. Boehm’s injury was
“without herniation or extrusion,” and he could therefore undergo rehabilitation,
including walking thirty minutes each day, to return to light work. Aplt. App., Vol. 3
at 315. And prior to that meeting, Dr. Edwards had noted that Mr. Boehm was stable
and not deteriorating. Id. at 323.
In addition to these conflicting reports, Dr. Edwards routinely indicated that
Mr. Boehm was completely disabled, although at times he believed Mr. Boehm could
perform light work. The ALJ also noted that Dr. Edwards’ opinion conflicted with
the findings of Mr. Boehm’s physical therapist, who found that he could perform
light to medium work and had put forth a poor effort in a functional capacity
evaluation.1 These inconsistencies justify the reduced weight given to Dr. Edwards’
1
Mr. Boehm argues that Dr. Edwards’ opinion should not be subordinated to the
physical therapist’s opinion, which ordinarily would be correct. But in this case,
Dr. Edwards requested the physical therapist’s functional capacity evaluation and
relied on it in his October 2009 assessment, despite the inconsistent findings. See
Aplt. App., Vol. 3 at 365. In fact, Dr. Edwards’ two examinations preceding the
functional capacity evaluation support the physical therapist’s finding that
(continued)
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opinion by the ALJ. Mr. Boehm invokes his lengthy treatment history as support for
Dr. Edwards’ opinions, but this argument does not reconcile the doctor’s conflicting
assessments. See Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007)
(“Medical evidence may be discounted if it is internally inconsistent or inconsistent
with other evidence.” (internal quotation marks omitted)). Mr. Boehm also insists
the ALJ failed to explain how Dr. Edwards’ opinions are inconsistent, but the
foregoing examples cited by the ALJ adequately explain his reasoning. See Watkins
v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (requiring ALJ to give “specific,
legitimate reasons” when discounting a medical opinion (internal quotation marks
omitted)).2
Mr. Boehm could return to light/medium work. See id. at 323 (December 21, 2007
note indicating “[r]eflex, motor, sensory examinations are normal [and] [h]e appears
to walk without a limp or abnormal gait.”); id. (February 4, 2008 note stating, “His
problem is stable. He is not deteriorating. I would not recommend any surgery at
this particular time.”). And Dr. Edwards acknowledged after the physical therapist’s
functional capacity evaluation that Mr. Boehm’s performance rendered many of the
evaluation’s “validity criteria borderline.” Id. at 315. Yet Dr. Edwards apparently
found the functional capacity evaluation reliable enough to incorporate into his
October 2009 assessment, perhaps because it was consistent with his own previous
notes. Under these circumstances, we cannot say the ALJ erred in noting the conflict
and according Dr. Edwards’ opinion reduced weight.
2
Mr. Boehm points out that the ALJ incorrectly stated that none of his doctors
recommended surgery. This error was “minor enough not to undermine confidence
in the determination of this case.” Gay v. Sullivan, 986 F.2d 1336, 1341 n.3
(10th Cir. 1993). Earlier in his decision, the ALJ recognized Dr. Edwards had
suggested surgery, and the conflicting statements the doctor offered on the subject
refutes Mr. Boehm’s assertion that his opinion was entitled to controlling weight.
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B. Credibility
Mr. Boehm’s second argument—that the ALJ improperly discredited his
complaints of pain—is equally unavailing. Mr. Boehm testified that he could sit or
stand for fifteen to twenty minutes, but then would need to lie down for twenty to
thirty minutes. He said he lived alone and could do his own chores, but he drove
only short distances and could vacuum no more than half a room at a time.
According to Mr. Boehm, his back pain made it difficult for him to fall asleep, and he
would often wake every two hours to change positions. The ALJ acknowledged this
testimony, but discredited it to the extent it conflicted with his RFC assessment.
Now Mr. Boehm contends the ALJ failed to properly evaluate this testimony
under Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). Luna instructs that if a
claimant establishes a loose nexus between his complaints of pain and a
pain-producing impairment, the ALJ must determine “whether, considering all the
evidence, both objective and subjective, the claimant’s pain was in fact disabling.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012). Such evidence
includes the claimant’s attempts to find relief, regular use of a crutch or cane, regular
contacts with a doctor, daily activities, and the dosage, effectiveness, and side effects
of any medication. Id. at 1167; see also SSR 96-7p, 1996 WL 374186, at *3 (July 2,
1996) (listing such factors as the claimant’s daily activities; the location, duration,
frequency, and intensity of the pain or other symptoms; and factors that precipitate
and aggravate the symptoms).
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Here, the ALJ detailed Mr. Boehm’s efforts to get treatment, including the
various diagnostic tests that confirmed “[d]isk degeneration L5-S1 with diskogenic
style low back pain, not severe.” Aplt. App., Vol. 3 at 246; see also id. at 342(“Degenerative disc disease probably responsible for the presenting pain
syndrome.”). The ALJ also reviewed x-rays showing a “[n]ormal appearing lumbar
spine with normal flexion and extension.” Aplt. App., Vol. 2 at 12; see also id.,Vol. 3 at 259 (x-ray report). Additionally, the ALJ discussed Mr. Boehm’s
participation in physical therapy, the efficacy of his steroid injections, and his visits
with Dr. Edwards and other doctors. Apart from these considerations, the ALJ
recognized that Mr. Boehm had been prescribed Lortab and Soma, which offered him
limited relief, and that the results of his physical therapist’s functional evaluation
were questionable due to his poor effort. Given this evidence, the ALJ summarized
Mr. Boehm’s testimony under the relevant factors enumerated in SSR 96-7p and
concluded that his complaints of pain were not credible to the extent they conflicted
with his RFC. We perceive no error. See Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000) (“So long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility,” the requirement that an ALJ link his credibility
finding to the evidence is “satisfied.”).3
3
Mr. Boehm protests the ALJ’s use of boilerplate language in discrediting his
testimony. See Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004) (“[I]n the
absence of a more thorough analysis,” “standard boilerplate language will not
suffice.” (brackets and internal quotation marks omitted)). As Mr. Boehm’s counsel
(continued)
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C. Hypothetical Question
Finally, Mr. Boehm contends that the ALJ posed an inaccurate hypothetical
question to the VE. During the hearing, the ALJ asked the VE to assume a
hypothetical claimant with the limitations assessed in exhibit 12F—a 2008 physical
RFC form completed by Dr. Russell Wallace. On the form, Dr. Wallace indicated
that Mr. Boehm could occasionally lift and carry twenty pounds; frequently lift and
carry ten pounds; sit, stand, or walk for a total of six hours in an eight-hour work day,
and perform unlimited pushing and pulling. He also limited Mr. Boehm to
occasional stooping and climbing of ladders, ropes, and scaffolding, but he
determined that Mr. Boehm could frequently climb ramps and stairs, and frequently
balance, kneel, crouch, and crawl. The ALJ relied on these assessments contained in
the RFC form, but Mr. Boehm says doing so failed to ensure the accuracy of the
question posed to the VE. We disagree.
A hypothetical question must include the impairments borne out by the record.
Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). Dr. Wallace assessed specific,
individual limitations commensurate with light work. See 20 C.F.R. §§ 404.1567(b),
416.967(b) (“Light work involves lifting no more than 20 pounds at a time with
well knows, however, this argument is unavailing here because the language was
preceded by a discussion of the evidence and factors used for assessing Mr. Boehm’s
credibility. Cf. Strickland v. Astrue, No. 11-7077, 2012 WL 3935755, at *7
(10th Cir. 2012) (unpublished) (rejecting counsel’s boilerplate argument because
“[t]he ALJ did not simply recite the general factors—he also stated the specific
evidence he relied on in determining that Claimant’s allegations were not credible.”).
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frequent lifting or carrying of objects weighing up to 10 pounds.”). The VE testified
that she had studied the record, including Dr. Wallace’s RFC form, and listened to
Mr. Boehm’s testimony. She then testified that based on the physical limitations
contained in the form, Mr. Boehm could not return to his past work as he performed
it, but he could perform other jobs existing in significant numbers in the national
economy. Nothing in the record suggests the hypothetical failed to reflect
Mr. Boehm’s limitations. Mr. Boehm says Dr. Wallace “apparently did not review at
least 60 pages of medical records,” Aplt. Br. at 18, but most of those records pre-date
Dr. Wallace’s RFC form, and there is no indication he failed to consider them.
Although some documents post-date the form, they nevertheless coincide with the
limitations found by Dr. Wallace; the lone exception is Dr. Edwards’ October 2009
assessment, which we have already said was unsupported by the evidence. We find
no error in the ALJ’s reliance on Dr. Wallace’s RFC form.4
4
In challenging the ALJ’s hypothetical question at step 5, Mr. Boehm attacks
the ALJ’s analysis at step 2, arguing that the ALJ “did not assess or consider at step 2
whether Claimant’s leg pain and vision problems are severe, non-severe or medically
determinable.” Aplt. Br. at 19. To the extent Mr. Boehm attempts to advance an
independent challenge to the ALJ’s step 2 findings within the context of his step 5
argument, we decline to consider the issue. See Keyes-Zachary, 695 F.3d at 1161
(declining to consider poorly developed sub-issues).
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III
The Commissioner’s decision applied the correct legal standards, and it is
supported by substantial evidence. For these reasons, the judgment of the district
court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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