Razo v. Colvin , 663 F. App'x 710 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANDREW RAZO,
Plaintiff - Appellant,
v. No. 15-1495
(D.C. No. 1:14-CV-00945-NYW)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
Andrew Razo, proceeding on appeal pro se, seeks reversal of the district
court’s judgment upholding the decision of an administrative law judge (ALJ) to
deny his application for social-security disability benefits and supplemental-security
income-benefits (SSI). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g). We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Mr. Razo, who was born in 1965, filed for disability benefits and SSI, claiming
he became disabled on August 31, 2005 due to numerous physical and mental
impairments, including upper-extremity limitations, psychological impairments,
limitations after recovery from numerous surgeries, morbid obesity, and pain. In
2010, the ALJ issued a decision, which was remanded by the Appeals Council for
further proceedings. Thereafter, the ALJ received additional medical records and
held four more hearings. On November 9, 2012, the ALJ issued an unfavorable
decision for Mr. Razo, concluding that despite Mr. Razo’s inability to perform his
past relevant work he still had a sufficient residual functional capacity (RFC) to
perform other work that existed in substantial numbers in the national economy.1
Accordingly, the ALJ denied benefits at step five of the five-step sequential
evaluation process. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(explaining the five-step framework for determining disability). The Appeals
Council denied review, and the district court affirmed.
II. DISCUSSION
“Under the Social Security Act, a claimant is disabled if [he] is unable to do
any substantial gainful activity by reason of any medically determinable physical or
1
“The RFC assessment is a function-by-function assessment based upon all of
the relevant evidence of an individual’s ability to do work-related activities.” SSR
96-8p, 1996 WL 374184, at *3 (July 2, 1996). It “considers only functional
limitations and restrictions that result from an individual’s medically determinable
impairment or combination of impairments, including the impact of any related
symptoms.” Id. at *1.
2
mental impairment which can be expected to last for a continuous period of not less
than 12 months.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (ellipsis
and internal quotation marks omitted). “We review the district court’s decision
de novo and independently determine whether the ALJ’s decision is free from legal
error and supported by substantial evidence.” Fischer-Ross v. Barnhart, 431 F.3d
729, 731 (10th Cir. 2005). “Substantial evidence is more than a mere scintilla and is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal
quotation marks omitted). We examine the record as a whole, but we do not reweigh
the evidence. Id. We also do not “substitute our judgment for that of the agency.”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation marks
omitted).
We have liberally construed Mr. Razo’s pro se filings. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,
“take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. Moreover, “pro se parties [must] follow
the same rules of procedure that govern other litigants.” Id. (internal quotation marks
omitted).
On appeal Mr. Razo asserts that (1) the ALJ failed to give controlling weight
to the opinion of his treating physician, (2) the ALJ failed to include in the RFC his
3
nonexertional impairments, and (3) the ALJ erred in relying on the vocational
expert’s (VE’s) opinion that there existed jobs he could perform.2
A. Weight Assigned to Physicians’ Opinions
In the RFC assessment, the ALJ found that Mr. Razo could “frequently use his
upper extremities for work activity.” R. Vol. 2, at 114. Mr. Razo contends the ALJ
impermissibly failed to give controlling weight to the opinion of his treating
physician, Dr. Mitchell Fremling, concerning his upper-extremity impairments, and
improperly gave substantial weight to the opinion of non-examining consultant
Dr. Gerald Greenberg.
Dr. Fremling treated Mr. Razo for upper-extremity problems, with the
treatment including surgery on both arms. In October 2009, three months after
decompression surgery, Dr. Fremling prepared a medical-source statement of ability
to do work-related physical activities, stating that Mr. Razo was limited in his ability
to lift and carry less than ten pounds frequently, to reach less than five pounds for
less than five minutes per hour, to handle less than ten pounds, to finger less than 20
minutes per hour, and to push or pull less than ten pounds for less than 20 minutes
per hour. In 2012, Dr. Fremling chronicled Mr. Razo’s complaints concerning his
upper extremities, noting that he had “treated [Mr. Razo] for multiple compression
2
Mr. Razo relies, in part, on the ALJ’s findings in the 2010 decision. But
because the Appeals Council remanded that decision for further findings and a new
determination, it was not final. Our review is limited to the final agency decision—
the decision issued November 9, 2012. See 42 U.S.C. § 405(g) (providing for review
of “any final decision of the Commissioner of Social Security” (emphasis added)).
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neuropathies between April 12, 2010 and [February 13, 2012].” R. Supp. Vol. 4, at
1461.
Dr. Greenberg reviewed Mr. Razo’s medical records and testified at an ALJ
hearing. Dr. Greenberg opined that Mr. Razo was capable of a range of sedentary
work, with limitations of lifting and carrying up to ten pounds occasionally, and
walking about one to two hours at a time for a total of four hours in an eight-hour
workday. He assigned no limitation to sitting or using the left arm and hand. In his
opinion, Mr. Razo could frequently use his right arm and fingers. Dr. Greenberg
noted that Mr. Razo had undergone numerous surgeries, but stated that the recovery
periods would last from a couple of weeks to a couple of months, and that none
would make him unable to work for a year.
Mr. Razo also cites to a neurological consultative examination performed by
Dr. Kristen Graesser in February 2010. Dr. Graesser prepared a medical-source
statement of ability to do work-related physical activities, limiting Mr. Razo to
frequent reaching, to occasional push-pull, and to no handling or fingering with his
right hand (with no limitation for his left hand). Dr. Graesser stated that Mr. Razo
could lift up to 50 pounds frequently and up to 100 pounds occasionally, could
frequently carry 20 pounds and occasionally carry 21 to 50 pounds, could sit for eight
hours and stand for two hours during an eight-hour workday, and could walk for one
hour at a time for a total of two hours during an eight-hour workday.
“A treating physician’s opinion must be given controlling weight if it is
supported by medically acceptable clinical and laboratory diagnostic techniques and
5
is not inconsistent with other substantial evidence in the record.” Knight ex rel. P.K.
v. Colvin, 756 F.3d 1171, 1176 (10th Cir. 2014) (internal quotation marks omitted).
If an ALJ does not give a treating physician’s opinion controlling weight, “the ALJ
must explain what weight, if any, was assigned to the opinion using all of the factors
provided in 20 C.F.R. §§ 404.1527 and 416.927.” Id. at 1176-77 (internal quotation
marks omitted). The ALJ is required to state the reasons for the weight he assigns
the opinion and if he “rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.” Id. at 1177 (internal quotation marks omitted).
“When analyzing a treating physician’s opinion, an ALJ first considers whether the
opinion is well supported by medically acceptable clinical and laboratory diagnostic
techniques and is consistent with the other substantial evidence in the record.”
Allman v. Colvin, 813 F.3d 1326, 1331 (10th Cir. 2016) (internal quotation marks
omitted). If the opinion is supported and consistent, the ALJ must give it controlling
weight. Id. If, on the other hand, “the treating physician’s opinion is not entitled to
controlling weight, the ALJ must then consider whether the opinion should be
rejected altogether or assigned some lesser weight.” Id. (internal quotation marks
omitted).
The ALJ assigned little weight to Dr. Fremling’s opinion because it was
inconsistent with the other medical opinions and with the evidence as a whole. In
addition, Dr. Fremling’s October 2009 assessment came three months after Mr.
Razo’s July 2009 surgery and conflicted with Dr. Graesser’s February 2010 opinion
that Mr. Razo had a greater RFC. The ALJ assigned substantial weight to Dr.
6
Graesser’s opinion. The ALJ assigned Dr. Greenberg’s opinion the most weight
because Dr. Greenberg was familiar with the applicable rules and regulations and
because his opinion was consistent with the medical evidence as a whole. Dr.
Greenberg explained that the limitations Dr. Fremling identified were not supported
by the record. In addition, Dr. Greenberg opined that those limitations would not last
beyond a short period after Mr. Razo’s surgeries and would not last for a minimum of
twelve months, as required to establish disability. See Wilson, 602 F.3d at 1140
(disability requires that claimant be unable to engage in substantial gainful activity
for at least twelve months). Similarly, to the extent Dr. Graesser’s opinion differed
from Dr. Greenberg’s regarding Mr. Razo’s upper-extremity limitations, Dr.
Greenberg explained that Dr. Graesser’s assessment was made several years before
and Mr. Razo had undergone several surgeries since then.
Mr. Razo argues that, in making these assignments, the ALJ failed to apply all
of the criteria for evaluating medical opinions set forth in 20 C.F.R. §§ 404.1527(c)
and 416.927(c). But the ALJ was not required “to apply expressly each of the six
relevant factors in deciding what weight to give a medical opinion.” Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). And as the ALJ observed, even
though Dr. Fremling continued to treat Mr. Razo after the October 2009 assessment,
he did not proffer an opinion on future restrictions for Mr. Razo’s upper extremities
or indicate that future surgery was planned. Rather, Dr. Fremling noted that he
would treat Mr. Razo with steroid injections.
7
The ALJ followed the proper procedure for weighting the medical opinions.
Contrary to Mr. Razo’s claim, the ALJ did not “pick and choose which aspects of an
uncontradicted medical opinion to [accept],” Hamlin v. Barnhart, 365 F.3d 1208,
1219 (10th Cir. 2004). Rather, the ALJ “provided good reasons in his decision for
the weight he gave to the treating source[’s] opinion[]. Nothing more was required in
this case.” Oldham, 509 F.3d at 1258 (citation omitted).3
B. Nonexertional Impairments
Mr. Razo asserts the ALJ failed to consider his impairments to social
functioning, his morbid obesity and pain, and his need to take time off for medical
appointments.
Mr. Razo relies on the testimony of Dr. Margaret Moore, an impartial
psychological expert, whose opinion the ALJ gave significant weight. Dr. Moore
testified that Mr. Razo had moderate limitations “in the social realm primarily,” but
that he had the ability to understand, remember, and carry out all types of instructions
and deal with changes in a routine work setting. R. Vol. 2, at 211. She also opined
that he would have some difficulty accepting instructions if confronted with his
3
In his reply brief, Mr. Razo expressed a concern about the ALJ’s remarks at
the February 16, 2012, hearing, suggesting that the medical witnesses were so limited
in their medical expertise that the ALJ had to halt the hearing. The certified
administrative transcript of the hearing reveals that the ALJ’s comment concerned
Dr. William Rack, an impartial medical expert, who reviewed all of the medical
evidence and testified at the February 16 hearing. Dr. Rack declined to express an
opinion on Mr. Razo’s capabilities. Consequently, the ALJ obtained Dr. Greenberg’s
medical opinion, as discussed herein.
8
substance abuse, and would have moderate limitations in dealing with the public and
supervisors.
Mr. Razo contends that Dr. Moore’s testimony about his substance abuse could
be interpreted to mean that he had significant limitations to his social functioning
when he was abusing opiates and moderate limitations when he was not. Either way,
he argues, the ALJ was required to include some limitations in his RFC.
The ALJ acknowledged the limitations to social functioning identified by
Dr. Moore, but determined that they were no longer applicable because Mr. Razo had
overcome his substance-abuse problem (with his opiate dependence in full remission
since at least June 2011) and had “not indicated any difficulty getting along with
others.” Id. at 124. In addition, even though Dr. Moore stated Mr. Razo could
remember and carry out all types of instructions, the ALJ limited the RFC to
understanding, remembering, and carrying out only simple instructions. See Chapo
v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[I]f a medical opinion adverse to
the claimant has properly been given substantial weight, the ALJ does not commit
reversible error by electing to temper its extremes for the claimant’s benefit.”). We
conclude that the ALJ properly considered Mr. Razo’s limitations to social
functioning.
Mr. Razo also asserts the ALJ failed to consider his morbid obesity in
formulating the RFC. As the ALJ recognized, Social Security Ruling 02-1p requires
a claimant’s obesity to be factored into the RFC. SSR 02-1p, 2002 WL 34686281, at
*1 (Sept. 12, 2002). The ALJ observed that none of the medical opinions specifically
9
addressed the impact of Mr. Razo’s obesity on his other impairments. Nevertheless,
the ALJ stated, Mr. Razo’s obesity would have been obvious to all of the medical
sources, who would be expected to include the effects of obesity in the limitations
indicated. The ramifications of obesity are subsumed within the discussion of
Mr. Razo’s other medical conditions. Furthermore, Mr. Razo does not discuss or cite
to medical or other evidence to support his claim that his obesity was disabling. See
Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (rejecting claimant’s
assertions that ALJ failed to properly consider her obesity, noting that a medical
report took into account her obesity and claimant did not cite to medical evidence
supporting her position). Therefore, we conclude that the factual record does not
support Mr. Razo’s claim that the ALJ failed to consider the effect of his obesity,
either alone or in combination with other impairments, in the RFC assessment.
Mr. Razo next contends the ALJ failed to evaluate his claim of disabling pain
as required by Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). Under Luna, an ALJ
evaluates a claimant’s complaints of disabling pain as follows:
(1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether the impairment is reasonably
expected to produce some pain of the sort alleged (what we term a “loose
nexus”); and (3) if so, 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) (citing Luna,
834 F.2d at 163–64).
The ALJ considered Mr. Razo’s complaints of pain. Even though he did not
cite Luna, the ALJ stated the Luna paradigm, R. Vol. 2, at 114, and discussed
10
Mr. Razo’s testimony and the objective evidence of his various physical and mental
impairments. After finding that his medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms, the ALJ evaluated
Mr. Razo’s pain complaints and concluded that they were not credible to the extent
they were inconsistent with the RFC assessment. Mr. Razo argues that the ALJ
improperly failed to consider the amounts of opiate pain relievers he was prescribed,
even after it was established that he had abused them. According to Mr. Razo, the
use of such pain relievers demonstrates he was in severe pain.
The ALJ thoroughly discussed Mr. Razo’s history of drug abuse, including the
evidence that he no longer had a problem with drug abuse. Contrary to Mr. Razo’s
assertion on appeal, the ALJ found that Mr. Razo’s drug-seeking behavior actually
diminished his credibility concerning his pain complaints, rather than bolstered it.
We conclude that the ALJ properly evaluated the evidence concerning Mr. Razo’s
complaints of disabling pain and that substantial evidence supports the determination
that Mr. Razo’s pain was not disabling. “[D]isability requires more than mere
inability to work without pain.” Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.
1986).
Mr. Razo also argues that the ALJ failed to consider his need to take time off
work for medical appointments. Relying on his own testimony, he asserts he must
attend a medical or therapeutic appointment three times per week, which would
preclude gainful employment. He does not, however, attempt to substantiate his
claim with the medical records. We decline to search the voluminous administrative
11
record to ascertain how many appointments each week Mr. Razo could be expected to
attend. We note, however, that following surgery in 2009, Dr. Fremling indicated
that Mr. Razo would need to miss work at least three times per month for medical
appointments. Even if this were necessary following surgery, it does not mean
Mr. Razo would be required to attend follow-up appointments indefinitely, nor does
it mean he could not perform work on a regular and continuing basis. To be able to
perform work on a “regular and continuing basis,” see 20 C.F.R. § 404.1545(b) & (c),
one need not keep a particular work schedule. Rather, work “on a regular and
continuing basis . . . means “8 hours a day, for 5 days a week, or an equivalent work
schedule.” SSR 96-8p, 1996 WL 374184, at *1, 2 (July 2, 1996). Therefore, the ALJ
did not err in declining to include this limitation in the RFC assessment.
C. Vocational Expert’s Testimony
Mr. Razo contends the ALJ erred in relying on the VE’s opinion at step five
that there existed jobs he could perform. “[T]he burden of proof shifts to the
Commissioner at step five to show that the claimant retains a sufficient RFC to
perform work in the national economy, given [his] age, education, and work
experience.” Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013).
The ALJ determined that Mr. Razo could not perform his past work as a
municipal maintenance worker, but that he could perform the jobs of small-products
assembler, addresser, and final assembler—jobs that exist in significant numbers in
the national economy. Mr. Razo claims generally that the ALJ failed to reconcile a
conflict between the VE’s testimony and the Dictionary of Occupational Titles
12
(DOT), as required by Social Security Ruling 00-4p. See SSR 00-4p, 2000 WL
1898704 (Dec. 4, 2000). On the contrary, the ALJ ascertained that the VE’s
testimony about jobs suitable for Mr. Razo did not differ from the DOT and clarified
that the VE’s answers not covered in the DOT were based on her education, training,
and experience as a vocational-rehabilitation counselor.
Mr. Razo also alleges that the hypothetical question presented to the VE did
not include all of his impairments. A hypothetical question posed to a VE is
sufficient if “it contained all of the limitations found to exist by the ALJ.” Barnett v.
Apfel, 231 F.3d 687, 690 (10th Cir. 2000). Mr. Razo contends that the ALJ limited
him to sedentary work, yet his hypothetical question to the VE included an ability to
“stand and walk no more than one hour at a time for no more than a total of 4 hours
during an 8-hour workday.” R. Vol. 2, at 114. Mr. Razo argues this capability is not
compatible with a limitation to sedentary work.
The ALJ did not determine that Mr. Razo was limited to sedentary work.
Rather, the ALJ found him limited to modified sedentary work including the
stand/walk limitation noted above. Thus, the ALJ’s hypothetical question was
sufficient because it contained all of the limitations found to exist by the ALJ. See
Barnett, 231 F.3d at 690.
Mr. Razo next complains that the jobs identified as appropriate for him
required frequent manipulation with the upper extremities. He contends the evidence
showed he could not perform such work. This claim merely restates his prior
argument that the ALJ should have credited the medical evidence indicating he could
13
not use his upper extremities. We reject this argument for the reasons discussed
above.
D. Post Hoc Application of Grids
Finally, Mr. Razo argues that if the Medical-Vocational Guidelines (the
“grids”), see 20 C.F.R. pt. 404, subpt. P, app. 2, were to be applied as of his birthday
three years after the ALJ’s decision, he would be deemed disabled. But this court
does not determine disability in the first instance; rather, our function is to review the
Commissioner’s determination. See 42 U.S.C. § 405(b) (directing the Commissioner
to make findings of fact and determinations of disability); id. § 405(g) (providing
judicial review of a “final decision of the Commissioner”).
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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