Rudde v. Astrue ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2007
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
CH AR LENE RU DD E,
Plaintiff-Appellant,
v. No. 07-5033
(D.C. No. 05-CV-632-FHM )
M ICH AEL J. ASTRU E, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.
In this Social Security disability and supplemental security income case,
Charlene Rudde seeks review of the Commissioner’s decision that she became
disabled as of M ay 20, 2000, rather than her alleged onset date of February 14,
1999. W e 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
M s. Rudde was diagnosed with multiple sclerosis in 1992. On February 14,
1999, she ceased working at her job as a cashier at a drugstore, citing increased
problem s w ith her legs. She applied for benefits, alleging a disability onset date
of February 14, 1999. Beginning in December 1999, she returned to the cashier
job part-time, under accommodations, but in early to mid-2000, her physical
condition deteriorated. Her physician put her on medical leave starting on
July 20, 2000, and she resigned because her job was in jeopardy due to her
increasing absences and physical difficulties.
The agency initially determined that she performed substantial gainful
activity from December 1999 through July 19, 2000, so that she could not be
considered disabled before July 20, 2000. The district court held that the
part-time drugstore job did not constitute substantial gainful activity and
remanded for further proceedings. On remand, the administrative law judge
(A LJ) determined that M s. Rudde became disabled as of M ay 20, 2000, but until
that date she retained sufficient residual functional capacity (RFC) to perform
sedentary jobs in the national economy. The ALJ’s decision became the final
agency decision under 20 C.F.R. §§ 404.984 and 416.1484, and the district court
affirmed the decision.
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II.
This appeal concerns only the period between February 14, 1999, and
M ay 19, 2000. M s. Rudde presents four issues, concerning (1) the assessment of
her RFC; (2) the determination, at step five of the five-step evaluation process,
that she could perform other jobs available in the national economy; (3) the
evaluation of her credibility; and (4) the calculation of her onset date.
“The standard of review in a Social Security appeal is whether the
Commissioner’s final decision is supported by substantial evidence, and whether
[he] applied the correct legal standards.” Grogan v. Barnhart, 399 F.3d 1257,
1261 (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.” Id. “[W]e meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met,” but “we do not reweigh the
evidence or try the issues de novo.” Id. at 1262.
RFC Determination
M s. Rudde first argues that the ALJ did not cite any evidence to support his
RFC determination that until M ay 20, 2000, she could lift up to ten pounds, she
could walk and stand for thirty minutes at a time for a total of two hours, and she
could sit for a total of six hours in an eight-hour workday. She also contends that
the RFC failed to include any limitations resulting from her fatigue and her
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reduced ability to use her hands to grasp objects and perform fine manipulation,
and the A LJ failed to address the evidence supporting such limitations.
The record contains substantial evidence to support the ALJ’s RFC
assessment. See Aplt. App., Vol. II at at 357-58 (Dr. Dalessandro’s
September 24, 1999, report of exam noting a “slight right limp,” stating that
“[t]he patient can heel-and-toe walk,” and finding despite “some weakness of the
right leg” that she had “a normal gait to speed, stability, and safety”); id. at 364
(Septem ber 30, 1999, non-examining physician’s R FC assessment that she could
occasionally lift up to twenty pounds and frequently lift ten pounds, could stand
and/or w alk about six hours in an eight-hour workday, and could sit about six
hours in an eight-hour workday); id., Vol. III at 372 (November 18, 1999,
non-examining physician’s R FC assessment that she could occasionally lift up to
twenty pounds and frequently lift ten pounds, could stand and/or walk about six
hours in an eight-hour workday, and could sit about six hours in an eight-hour
workday); id. at 386 (August 21, 2000, treating physician’s medical assessment
stating that she could sit for a total of six hours, walk a total of one hour and
stand a total of forty-five minutes in an eight-hour day, and she could
occasionally lift and carry up to ten pounds); id. at 462 (M s. Rudde’s October 30,
2000, testimony that before she went on medical leave she could stand for a half-
hour at a time and she could w alk for short distances).
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As for M s. Rudde’s fatigue, the RFC does include a reference to fatigue.
See id. at 487 (“Additionally, the claimant is afflicted with symptoms from
multiple sclerosis that include mild to moderate chronic pain and fatigue that are
of such sufficient severity so as to be noticeable to her at all times, but
nevertheless would not prevent her from being able to remain attentive and
responsive in a work-setting and perform work assignments within the above
limitations.”). M s. Rudde’s argument rests on the premise that the ALJ was
required to believe her testimony that she dozed off every time she sat for more
than thirty minutes at a time. Ultimately, however, it is up to the ALJ to weigh
the evidence; this court will not reweigh it. Rutledge v. Apfel, 230 F.3d 1172,
1174 (10th Cir. 2000); Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
Similarly, regarding M s. Rudde’s hand impairments, she cites medical
notations about numbness in her hands and arms, Dr. Dalessandro’s
September 1999 measurement of reduced grip strength in her right hand, and her
testimony and that of her daughter that she experienced some numbness in her
hands and fingers, experienced difficulty in opening jars and making change, and
that she sometimes dropped things. But this evidence does not necessarily mean
that her limitations w ere so severe that the ALJ w as required to include them in
her RFC. Again, it is the ALJ’s task to weigh the evidence. W hile there is
evidence favoring each side, the medical record does provide substantial evidence
for the ALJ’s determination that M s. Rudde’s hand and arm problems were not
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severe enough to affect her RFC during the period at issue. See Aplt. App., Vol.
II. at 147, 167 (M ay 27, 1999, and June 28, 1999, disability reports by M s. Rudde
indicating her problems working came from fatigue and “trouble with [her] legs,”
but not mentioning trouble w ith her hands); id. at 358 (Dr. Dalessandro’s
September 24, 1999, consultative examination report stating “[d]exterity of gross
and fine manipulation is present”); id. at 365-66 (September 30, 1999,
non-examining physician’s RFC assessment noting that she can grasp tools and
manipulate small objects and assessing no manipulative limitations); id., Vol. III
at 374 (November 18, 1999, non-examining physician’s RFC assessment
reflecting no manipulative limitations); id. at 387 (August 21, 2000, treating
physician’s statement that she could do simple grasping and pushing/pulling of
controls with right hand, and simple grasping, pushing/pulling of controls, and
fine manipulation with left hand); id. at 461 (M s. Rudde’s October 30, 2000,
testimony that her problems with her hands had been “going off and on since –
well, since about M ay, I’ve noticed that’s w orse”); id. at 464 (M s. Rudde’s
daughter’s testimony characterizing degree of difficulty with hands in February
1999 as “a little bit”).
The record contains substantial evidence to support the A LJ’s
determination that M s. Rudde retained the ability to perform other sedentary work
up until M ay 20, 2000, when her condition became disabling. W e recognize
M s. Rudde’s contention that multiple sclerosis is an incurable, progressive disease
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subject to periods of remission and exacerbation. See Wilcox v. Sullivan,
917 F.2d 272, 274 (6th Cir. 1990); Estes v. R.R. Ret. Bd., 776 F.2d 1436, 1437
(9th Cir. 1985); Parish v. Califano, 642 F.2d 188, 193 (6th Cir. 1981). But the
onset date is “the first day an individual is disabled as defined in the [Social
Security] Act and the regulations.” Soc. Sec. Rul. 83-20, 1983 W L 31249, at *1
(1983). Even if her condition went into remission at some point during 1999, to
obtain benefits dating back to February 14, 1999, M s. Rudde had to be disabled as
of February 14, 1999, and substantial evidence in the record supports the ALJ’s
determination that M s. Rudde was not disabled as of that date.
Step-Five Determination
M s. Rudde also challenges the ALJ’s step-five determination that she could
perform the jobs of electronic goods assembler, optical goods assembler, and
security system monitor. She argues that her problems w ith her hands rendered it
impossible to do the jobs of electronic goods assembler and optical goods
assembler, and her fatigue and tendency to doze off rendered her unable to do any
of the jobs. Again, these arguments depend on accepting M s. Rudde’s evaluation
of her impairments, which the ALJ did not do. For the reasons discussed above,
the ALJ’s determination regarding the impairments is supported by substantial
evidence. The ALJ was not required to allow for impairments he did not accept
as true. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990).
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Credibility Evaluation
M s. Rudde also challenges the ALJ’s evaluation of her credibility. The
ALJ found M s. Rudde partially credible. He noted that for the period at issue, the
clinical findings did not support her assertions of disability, and he stated:
The medical record reflects the claimant had some difficulties in the
late 1990’s and the early months of 2000, including problems w ith
fatigue. The claimant, however, was working part-time, was not
using a cane, and was able to perform at least some household chores
with the help of her daughter during this period. . . . Based upon
these circumstances, the claimant is found only partially credible in
this case. Although having difficulty throughout the pertinent period
in this case, her assertions of disability prior to M ay 2000 are not
supported by the overall record.
Aplt. A pp., Vol. III at 486.
The A LJ is “the individual optimally positioned to observe and assess
witness credibility.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799,
801 (10th Cir. 1991). “Credibility determinations are peculiarly the province of
the finder of fact, and we will not upset such determinations when supported by
substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(quotation omitted). The A LJ must cite specific evidence relevant to the factors
used in evaluating a claimant’s subjective complaints, and explain why if he
concludes those complaints are not credible. See id.; see also Soc. Sec. Rul.
96-7p, 1996 W L 374186, at *4 (1996) (stating that credibility determinations
cannot be based on “intangible or intuitive” reasons, but “must be grounded in the
evidence and articulated in the determination or decision”). This process,
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however, “does not require a formalistic factor-by-factor recitation of the
evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ cited several reasons for discounting M s. Rudde’s allegations of
total disability during the period at issue. Primary among those reasons were the
medical and clinical findings that were inconsistent with M s. Rudde’s allegations.
Such inconsistencies are an appropriate basis for evaluating credibility. See
Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996); Kepler, 68 F.3d at 391(listing factors an ALJ might consider). The ALJ also appropriately considered
M s. Rudde’s attempts to seek relief and her daily activities. See Kepler, 68 F.3d
at 391; Ham ilton v. Sec’y of Health & H um an Servs., 961 F.2d 1495, 1499
(10th Cir. 1992). Because the ALJ followed Kepler and the credibility evaluation
was supported by substantial evidence, it is not our prerogative to disturb it.
Onset Date
Finally, M s. Rudde argues that the ALJ failed to properly evaluate her
onset date. She contends that the record does not support the ALJ’s determination
that her condition worsened as of M ay 20, 2000, and that the ALJ “made no
evaluation of whether the evidence supported an earlier onset date or whether an
earlier date could be inferred from the medical evidence.” Aplt. Br. at 35. She
also contends that the ALJ should have sought a medical opinion in order to infer
an onset date. See Soc. Sec. Rul. 83-20, 1983 W L 31249, at *3.
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As noted above, the ALJ discussed the medical evidence in assessing
M s. Rudde’s RFC. The record contains substantial evidence that M s. Rudde’s
condition declined in or about M ay 2000. She began using a cane in that month.
Aplt. App., Vol. III. at 637. On August 22, 2000, her supervisor wrote that “[s]he
has always had difficulty walking and standing for a long period, but in the last
two months her condition has worsened. It has caused her to miss several days of
work per w eek routinely and when working has requested use of a chair to sit
down when not busy.” Id., Vol. II at 187; see also id., Vol. III at 634
(M s. Rudde’s testimony confirming that her attendance problems occurred in the
last two months of her employment). In addition, M s. Rudde testified that she
began experiencing more difficulties with her hands in M ay. Id., Vol. III at 461.
As for alleged error in failing to call a medical advisor to infer the onset
date, “a medical advisor need be called only if the medical evidence of onset is
ambiguous.” Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995). “[T]he
established onset date must be fixed based on the facts and can never be
inconsistent with the medical evidence of record.” Soc. Sec. Rul. 83-20, 1983
W L 31249, at *3. Concededly, M s. Rudde was diagnosed with multiple sclerosis
in 1992, and her medical records between 1992 and 1997 document intermittent
episodes of leg pain and weakness, spasticity of the right leg, tingling and
weakness in her arms or hands, and fatigue. But her medical records from early
1999 do not mention such issues or otherwise support her complaints of totally
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disabling impairments as of the alleged onset date, see Aplt. App., Vol. II at
340-41, 348, and the September 24, 1999, consultative exam reports did not
support a finding of total disability, see id. at 356-62; see also id. at 363-70
(September 30, 1999, non-examining physician’s RFC assessment). Thus,
inferring an onset date earlier than the M ay 20, 2000, date assessed by the ALJ
would be inconsistent with the medical evidence of record. The ALJ’s failure to
call a medical advisor was not error.
III.
W e recognize that multiple sclerosis is a devastating disease, and persons
living with it face numerous difficulties. If this matter had been before us in the
first instance, we might have reached a different conclusion. But the matter is not
before us in the first instance, and we must apply our established deferential
standard of review of the agency’s determinations. The judgment of the district
court is A FFIR ME D.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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