Ballard v. Barnhart , 74 F. App'x 872 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 29 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHELLEY BALLARD,
Plaintiff-Appellant,
v. No. 02-6368
(D.C. No. CIV-01-908-P)
JO ANNE B. BARNHART, (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and
TYMKOVICH , Circuit Judge.
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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff-appellant Shelley Ballard challenges the Social Security
Commissioner’s decision denying Ballard disability benefits. Ballard claims she
has been disabled from her occupation as a nurse’s assistant since August 1996
because of back problems. She suffers from degenerative disc disease and has
undergone two surgeries to fuse several vertebrae in her lower back. The
administrative law judge (ALJ) applied the statutory five-step analysis to
determine disability. See 20 C.F.R. § 404.1520. The ALJ, at step five, found
Ballard still had the ability to work as an order clerk, surveillance system monitor
and diet clerk. The Appeals Council denied review, making the ALJ’s denial the
Commissioner’s final decision. Reviewing only to determine whether there is
substantial evidence to support the Commissioner’s decision and whether the
Commissioner correctly applied the law, see Angel v. Barnhart , 329 F.3d 1208,
1209 (10th Cir. 2003), we affirm the benefits denial.
I.
In August 1996, Ballard injured her back while working as a nurse’s
assistant. A magnetic resonance imaging indicated, among other things, a
minimally bulging or herniated disc and a possible synovial cyst at the L5-S1
level. There was also evidence of degenerative disc disease between the L4-L5
and L5-S1 levels. Ballard received conservative treatment, including physical
therapy and pain medication, for over nine months without any relief. Ballard then
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underwent two separate surgeries, over the next few years, to fuse the affected
vertebrae. Both surgeries initially reduced her back and leg pain significantly.
But within six to eight months following each surgery, Ballard’s pain returned.
This led her orthopedic surgeon, Dr. Amundson, to “strongly suspect[]” that
Ballard has suffered a “permanent nerve root injury complicated by perineural
scarring or arachnoiditis.” Appellant’s app., vol. II at 527.
II.
In denying benefits, the ALJ found that Ballard retained the residual
functional capacity (RFC) to perform sedentary work that did not require her to
walk more than two blocks at a time, would permit her to alternate sitting and
standing every thirty minutes, and would not require her to drive a car or perform
“any repetitive movements such as bending, lifting, twisting, crouching, and
kneeling.” Id. at 15. See generally 20 C.F.R. § 404.1545(a) (disability claimant’s
residual functional capacity reflects what claimant can still do despite his or her
impairment or combination of impairments). Ballard asserts, however, that in
making this RFC determination, the ALJ failed to credit her treating physicians’
opinions and Ballard’s own testimony that she could not work.
The ALJ did fully credit Ballard’s treating physicians’ opinions as to her
physical limitations, but did not credit their conclusion that Ballard could no
longer work. The ALJ did not err in doing so. While “[t]he ALJ must give
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‘controlling weight’ to the treating physician’s opinion, provided that opinion ‘is
well-supported . . . and is not inconsistent with other substantial evidence[,]’ . . . a
treating physician’s opinion is not dispositive on the ultimate issue of disability.”
White v. Barnhart , 287 F.3d 903, 907 (10th Cir. 2001) (quoting 20 C.F.R.
§ 404.1527(d)(2)); see also 20 C.F.R. § 404.1527(e)(1).
Here, Ballard’s treating orthopedic surgeon, Dr. Amundson, in May 1999,
indicated that Ballard should not lift more than ten pounds, could sit and stand for
approximately thirty minutes, should not walk more than two blocks at a time
without rest and should avoid repetitive bending, lifting, twisting crouching, and
kneeling activities on a permanent basis. See Appellant’s app., vol. II at 476. He
reiterated those restrictions again in August 1999. See id. at 466. And, in July
2000, Ballard’s general physician, Dr. Goossens also agreed with Dr. Amundson’s
opinion as to Ballard’s physical restrictions. See id. at 522. The ALJ specifically
incorporated those restrictions into the hypothetical question he posed to the
vocational expert to elicit the expert’s testimony that there were jobs existing in
the economy that Ballard remained capable of performing. The only thing the ALJ
did not credit was Drs. Amundson’s and Goossens’ further conclusion that these
restrictions meant that Ballard was unable to perform any substantial and gainful
work. See id. at 466, 522. But that disability determination is left to the ALJ to
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make. See 20 C.F.R. § 404.1527(e)(1). See generally id. § 404.1505(a) (defining
disability as “inability to do any substantial gainful activity”).
Ballard further asserts, however, that the ALJ should have recontacted Dr.
Amundson to clarify whether his opinion that Ballard’s “sitting and standing
tolerance is approximately 30 minutes,” Appellant’s app., vol. II at 466 (quoting
May 27, 1999 clinical note), meant that she needed to alternate sitting and standing
throughout a workday or, instead, that Ballard could only sit or stand a total of
thirty minutes in a workday. “The Commissioner . . . must recontact a treating
physician when the information the doctor provides is inadequate . . . to determine
whether [the claimant is] disabled.” White , 287 F.3d at 908 (quotation omitted).
Here, however, even if Dr. Amundson’s opinion is ambiguous, Ballard’s general
physician, Dr. Goossens, concurred with Dr. Amundson’s assessment of Ballard’s
physical limitations and specifically noted that Ballard “is unable to sit, stand, or
lay down for more than 30 minutes without having the ability to change[]
positions.” Appellant’s app., vol. II at 522. That is sufficient to support the ALJ’s
RFC determination.
Further, Ballard’s attorney acknowledged, at the administrative hearing, that
Dr. Goossens’ opinion essentially agreed with Dr. Amundson’s opinion. See id. at
537-39. When, as here,
the claimant is represented by counsel at the administrative hearing,
the ALJ should ordinarily be entitled to rely on the claimant’s counsel
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to structure and present claimant’s case in a way that the claimant’s
claims are adequately explored. Thus, in a counseled case, the ALJ
may ordinarily require counsel to identify the issue or issues requiring
further development.
Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997) (addressing whether ALJ
had duty to develop record in that case).
Lastly, Ballard asserts that the ALJ erred in discrediting her complaints of
disabling pain. No one disputes that Ballard suffers from an objectively
established medical impairment capable of causing the pain of which she
complains. See Winfrey v. Chater , 92 F.3d 1017, 1020 (10th Cir. 1996) (“Before
the ALJ need even consider any subjective evidence of pain, the claimant must
first prove by objective medical evidence the existence of a pain-producing
impairment that could reasonably be expected to produce the alleged disabling
pain.”) (quotation omitted). Nonetheless, the ALJ refused to credit Ballard’s
claims that this pain prevented her from working, in light of Ballard’s daily
activities. In relying on those daily activities, however, the ALJ declined to credit
Ballard’s testimony that, when she performed these activities, she had to lie down
frequently throughout the day. The ALJ applied the appropriate legal standard to
this credibility determination, see, e.g., Barnett v. Apfel , 231 F.3d 687, 690 (10th
Cir. 2000), and gave specific reasons for discrediting Ballard’s disabling-pain
complaints, see, e.g., White , 287 F.3d at 909. And the evidence in the record
supported those reasons. See, e.g., id. at 910. Because “credibility determinations
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are peculiarly the province of the finder of fact, and should not be upset if
supported by substantial evidence,” id. at 909 (quotation omitted), we must uphold
the ALJ’s credibility determination.
For these reasons, then, we AFFIRM the judgment of the United States
District Court for the Western District of Oklahoma upholding the Commissioner’s
decision denying Ballard disability benefits.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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