Bailey v. Apfel ( 1998 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 8 1998
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    CHARLENE BAILEY,
    Plaintiff-Appellant,
    v.                                                     No. 98-5022
    (D.C. No. 96-CV-1055-J)
    KENNETH S. APFEL, Commissioner,                        (N.D. Okla.)
    Social Security Administration, *
    Defendant-Appellee.
    ORDER AND JUDGMENT            **
    Before PORFILIO, BARRETT,              and KELLY , 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
    *
    Pursuant to Fed. R. App. P. 43(c)(2), Kenneth S. Apfel is substituted for
    John J. Callahan, former Acting Commissioner of Social Security, as the
    defendant 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    This order and judgment is not binding precedent, except under the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. 34.1.9. The case is therefore
    ordered submitted without oral argument.
    Plaintiff-appellant Charlene Bailey appeals the denial of her application for
    Supplemental Security Income disability benefits. We exercise jurisdiction under
    
    42 U.S.C. § 405
    (g) and affirm.
    Plaintiff alleges disability because of a severe mental impairment, arthritis
    and a positive diagnosis for hepatitis C.   1
    The Administrative Law Judge (ALJ)
    found at step two of the sequential evaluation process that plaintiff had no
    impairment or combination of impairments which significantly limit her ability to
    perform basic work-related functions. We review this decision to determine only
    whether the relevant findings are supported by substantial evidence and whether
    the Commissioner applied correct legal standards.       See Hargis v. Sullivan , 
    945 F.2d 1482
    , 1486 (10th Cir. 1991). “Substantial evidence is such relevant
    evidence as a reasonable mind might accept as adequate to support a conclusion.”
    
    Id.
     We cannot reweigh the evidence or substitute our judgment for that of the
    1
    Plaintiff’s case before the ALJ was primarily based on her alleged disabling
    alcoholism. Since her hearing before the ALJ, the social security statutes have
    been amended to deny benefits in certain circumstances to persons suffering from
    alcoholism or drug addiction.    See 42 U.S.C. § 1382c(a)(3)(J). In affirming the
    denial of benefits, the district court did not rely on the Commissioner’s
    alcoholism argument because the ALJ did not conduct the analysis or make the
    findings required by the Commissioner’s own regulations.      See 
    20 C.F.R. § 416.935
    . Plaintiff does not argue on appeal that she is disabled because of
    alcoholism.
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    Commissioner. See 
    id.
     On appeal, plaintiff argues that (1) the Commissioner did
    not properly consider her hepatitis C as a separate impairment from her hepatitis
    B; 2 (2) the ALJ failed to properly evaluate her mental impairment; and (3) the
    ALJ failed to properly develop the record regarding her diagnosed arthritis.
    The record shows that plaintiff had positive hepatitis C antibodies for
    approximately twenty months. By November 1995, Dr. Michael Scott found this
    condition to be suggestive of a chronic state. While he noted that plaintiff’s liver
    functions were normal as of June 1995, Dr. Scott also noted that “[t]reatment for
    chronic or active hepatitis C with      interferon may be helpful in some cases to
    induce remission.” R. Vol. II at 173.
    It is the plaintiff’s burden to prove disability.   Hawkins v. Chater , 
    113 F.3d 1162
    , 1164 (10th Cir. 1997). In order to demonstrate at step two that an
    impairment is severe, plaintiff must show that it “significantly limits [her]
    physical or mental ability to do basic work activities.” 
    20 C.F.R. § 416.920
    (c).
    While we have characterized this showing as “de minimis,”        see Hawkins ,
    
    113 F.3d at 1169
    , the mere presence of a condition or ailment documented in the
    record is not sufficient to prove that the plaintiff is significantly limited in the
    ability to do basic work activities,    see Hinkle v. Apfel , 
    132 F.3d 1349
    , 1352 (10th
    2
    The evidence regarding plaintiff’s hepatitis C was not before the ALJ but
    was presented later to the Appeals Council.
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    Cir. 1997). Unfortunately for plaintiff, there is nothing more in the record
    regarding her hepatitis C than the evidence reviewed above. There is no evidence
    of any functional component associated with the presence of her hepatitis C.
    Accordingly, there was substantial evidence to support the Commissioner’s
    conclusion that plaintiff’s hepatitis was not a severe impairment.
    Plaintiff next argues that the ALJ improperly evaluated her alleged mental
    disorder. In reviewing the record, the ALJ took note of plaintiff’s affective
    disorder and the diagnoses of personality disorder with schizoid features and mild
    depressive disorder. He noted also, however, that “examination indicates that
    there are no abnormal thought processes and no significant suicidal ideation. . . .”
    R. Vol. II at 24. The ALJ further observed that “[t]he consultative examiners
    were unable to find significant impairments, and cited only the alcohol abuse and
    affective disorder, based on her reports of drinking and history of treatments for
    mental disorders, but she currently denies any symptoms.”     
    Id.
     This is a faithful
    recap of the record evidence.
    Plaintiff received two consultative mental examinations. Both examiners
    completed a Psychiatric Review Technique (PRT) form, and both concluded that
    plaintiff had no severe impairment.   See id. at 41, 58. Plaintiff asserts that the
    ALJ ignored a medical opinion on one of these forms that her mental impairment
    causes moderate difficulties in her ability to maintain social functioning. While
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    Dr. Bernard Pearce did indicate this limitation, he also concluded in two other
    places on the form that, overall, plaintiff had no severe impairment.     See id. at 58,
    67. The ALJ did not err in refusing to find that this single observation
    established a severe mental impairment.
    As is required at every adjudicative step of the disability determination
    process where a mental impairment is alleged, the ALJ completed a PRT form
    which he attached to his decision. Plaintiff charges that the ALJ did not discuss
    his conclusions or link those conclusions to specific evidence. We disagree.
    In his decision, the ALJ specifically stated that plaintiff’s affective disorder
    did not cause significant vocational limitations.    See id. at 23. He also discussed
    the findings of the two consultative examiners who concluded that plaintiff did
    not have a severe mental impairment.       See id. at 41, 58. The ALJ’s PRT form is
    simply a synthesis of the evidence in the record. Where the categories presented
    on the PRT form were inadequate to accurately describe plaintiff’s circumstances,
    the ALJ added comments on the line marked “other.”         See id. at 28-29. All of
    these clarifying comments find support in the record.      Thus, the ALJ performed
    an adequate legal analysis of plaintiff’s mental condition.
    Finally, plaintiff argues that the ALJ breached his duty to develop the
    record when he ordered a consultative examination of plaintiff’s arthritis without
    also ordering x-rays. This argument is also without merit. Plaintiff was
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    diagnosed with chronic arthritis of the hip and lower back in November 1993
    despite walking without difficulty and presenting no acute pain or distress.      See
    id. at 147. Presumably based on this evidence and plaintiff’s allegations of
    disabling arthritic pain, a consultative exam was ordered. That exam, done in
    October of 1994, identified some tenderness in the right shoulder and the
    lumbodorsal area. Plaintiff’s gait was normal to speed, stability, and safety and
    she had no difficulty getting on and off the examining table.      See id. at 110-11.
    There was no joint deformity or swelling.      See id. at 111. The consultative
    physician did not diagnose arthritis.
    The ALJ’s duty to order a consultative examination is triggered when the
    plaintiff has advanced evidence “sufficient to suggest a reasonable possibility that
    a severe impairment exists,”   see Hawkins , 
    113 F.3d at 1167
    . “The ALJ does not
    have to exhaust every possible line of inquiry in an attempt to pursue every
    potential line of questioning. The standard is one of reasonable good judgment.”
    
    Id. at 1168
    . Given the overwhelmingly normal results of plaintiff’s range of
    motion studies and the presence of only slight pain and tenderness in the
    lumbodorsal area from the consultative exam and her treating physician’s
    observation that she walked without difficulty and presented no acute pain or
    distress, there was no need for the ALJ to order x-rays. Plaintiff’s suggestion that
    her indigence prevented her from obtaining x-rays is belied by the medical record,
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    which indicates that she has been able to obtain significant medical care
    throughout the years despite her lack of funds.
    The judgment of the United States District Court for the Northern District
    of Oklahoma is AFFIRMED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
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