Qualls v. Astrue , 428 F. App'x 841 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MELISSA J. QUALLS,
Plaintiff-Appellant,
v. No. 10-6288
(D.C. No. 5:09-CV-00922-M)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
Melissa J. Qualls appeals from a district court order affirming the
Commissioner’s decision to deny her application for social security disability
insurance benefits (DIB). Ms. Qualls alleged a disability onset date of March 22,
2004. Her date last insured was December 31, 2008; “thus she had the burden of
proving that she was totally disabled on that date or before,” Wilson v. Astrue,
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
602 F.3d 1136, 1139 (10th Cir. 2010). Our jurisdiction arises under 28 U.S.C.
§ 1291 and 42 U.S.C. § 405(g). Because the Commissioner’s decision is
supported by substantial evidence and the law was properly applied, we affirm.
I.
Ms. Qualls was 28 years old on her date last insured (DLI). She is a high
school graduate and attended one year of college. She has worked as a customer
service representative, as a cashier/sales clerk/stocker, and as a childcare provider
assistant.
In 2001, Ms. Qualls was diagnosed with Multiple Sclerosis (MS). In 2006,
she applied for DIB, alleging an inability to work since March 22, 2004, due to
MS, severe migraines, and depression. The agency denied her application
initially and on reconsideration.
Following a 2008 hearing before an Administrative Law Judge (ALJ), at
which Ms. Qualls and a Vocational Expert (VE) testified, the ALJ denied benefits
at steps four and five of the five-step sequential evaluation process for
determining whether a claimant is disabled. See Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005) (describing five-step process); see also
Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir. 1994) (recognizing benefit of
alternative determinations in the social security review process). The ALJ found
that between Ms. Qualls’ alleged onset date and her DLI: (1) she had not engaged
in substantial gainful activity; (2) she was severely impaired by MS and
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migraines; 1 (3) she did not have an impairment or combination of impairments
that met or medically equaled any of the per se disabling impairments listed in
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) she retained the residual
functional capacity (RFC) to perform the full range of light work and was not
disabled because—having compared her RFC with the physical and mental
demands of her past relevant work (PRW) as a customer service representative
and as a cashier/sales clerk/stocker—she could perform her PRW as it is generally
performed; and (5) in the alternative, taking into account the testimony of the VE,
as well as Ms. Qualls’ age, education, work experience, and RFC, she was not
disabled because she could make a successful adjustment to other light and
sedentary work that exists in significant numbers in the national economy.
The Appeals Council denied Ms. Qualls’ request for review, making the
ALJ’s decision the Commissioner’s final decision for purposes of review.
See Wilson, 602 F.3d at 1140. The district court affirmed the ALJ’s denial of
benefits, and Ms. Qualls appeals. She contends the ALJ (1) erred at steps four
and five of the sequential evaluation process, and (2) failed to perform a proper
credibility determination.
1
The ALJ found Ms. Qualls’ “medically determinable mental impairment of
depression did not cause more than minimal limitation in [her] ability to perform
basic mental work activities and was therefore non-severe.” Aplt. App., Vol. 2
at 14.
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II.
“[W]e review the ALJ’s decision only to determine whether the correct
legal standards were applied and whether the factual findings are supported by
substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d 788, 790
(10th Cir. 2006).
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance. We consider whether
the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases, but we will
not reweigh the evidence or substitute our judgment for the
Commissioner’s.
Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (internal quotation marks
omitted).
Because “the purpose of the credibility evaluation is to help the ALJ assess
a claimant’s RFC,” which is used at steps four and five, “the ALJ’s credibility
and RFC determinations are inherently intertwined.” Poppa v. Astrue, 569 F.3d
1167, 1171 (10th Cir. 2009); see also Social Security Ruling (SSR) 96-8p,
1996 WL 374184, at *2 (July 2, 1996) (“The . . . [claimant’s] RFC is used at step
4 of the sequential evaluation process to determine whether an individual is able
to do past relevant work, and at step 5 to determine whether an individual is able
to do other work, considering . . . her age, education, and work experience.”).
With this in mind, we turn first to Ms. Qualls’ arguments about the ALJ’s
credibility determination.
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The ALJ’s Credibility Determination
When a claimant establishes a medically determinable physical or mental
impairment that could reasonably be expected to produce the symptoms
complained of, the ALJ must evaluate the intensity, persistence, and functionally
limiting effects of the symptoms to determine the extent to which the symptoms
affect the claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1). To do this,
the ALJ must “make a finding about the credibility of the [claimant’s] statements
about [her] symptom(s) and [their] functional effects.” SSR 96-7p, 1996 WL
374186, at *1 (July 2, 1996). Factors the ALJ may consider in assessing a
claimant’s complaints include “the levels of [her] medication and [its]
effectiveness, . . . the frequency of [her] medical contacts, the nature of [her]
daily activities, subjective measures of credibility that are peculiarly within the
judgment of the ALJ, . . . and the consistency or compatibility of nonmedical
testimony with objective medical evidence.” Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995). See also 20 C.F.R. § 404.1529(c)(3) (listing seven factors
relevant to claimant’s symptoms that the ALJ will consider); SSR 96-7p,
1996 WL 374186, at *3 (same).
In this case, the ALJ found Ms. Qualls’ medically determinable
impairments could reasonably be expected to cause her alleged symptoms. 2 But
2
Ms. Qualls’ symptoms “include[d] migraines triggered by stress/anxiety
(continued...)
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he found her “statements concerning the intensity, persistence and limiting effects
of [her] symptoms . . . not credible to the extent they [we]re inconsistent with”
performing a full range of light work (her RFC). Aplt. App., Vol. 2 at 16.
Ms. Qualls first attacks the ALJ’s credibility determination on the grounds
that he imposed an incorrect standard of proof that consisted of boilerplate
language. Specifically, she challenges the ALJ’s statement that her “allegedly
limited daily activities cannot be objectively verified with any reasonable degree
of certainty” and that “even if [her] daily activities were truly as limited as she
alleged, it is difficult to attribute that degree of limitation to [her] medical
condition as opposed to other reasons, in view of the relatively weak medical
evidence and other factors discussed in this decision.” Id. at 18. 3
2
(...continued)
which come[] and go[]; double vision; balance [problems]; problems with
numbness in [her] hands, arms, and legs; and her biggest problem is that she can
not retain information and has to write things down all the time.” Aplt. App.,
Vol. 2 at 16 (ALJ’s recitation of some of Ms. Qualls’ hearing testimony).
3
The ALJ cited no authority for his requirement that Ms. Qualls’ stated
activities of daily living “be objectively verified with any reasonable degree of
certainty.” Aplt. App., Vol. 2 at 18. Indeed, 20 C.F.R. § 404.1529(c)(3)(i) does
not require verification. The regulations simply state that such evidence will be
evaluated “in relation to the objective medical evidence and other evidence.”
20 C.F.R. § 404.1529(c)(4). In Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009),
we observed that the ALJ had made a very similar “objectively verified”
statement. Id. at 1070. But the ALJ did so after “and thus in light of, his adverse
determination of Claimant’s credibility.” Id. at 1069. We determined in Wall
that the objectionable statement was merely the ALJ’s “observation that [he]
would not treat Claimant’s testimony as ‘strong evidence’ of her disability due to
his prior determination that Claimant’s testimony was not ‘fully credible.’”
(continued...)
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As we have often emphasized, boilerplate language, “in the absence of a
more thorough analysis,” is insufficient to support an ALJ’s credibility
determination. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
Instead, “findings as to credibility should be closely and affirmatively linked to
substantial evidence.” Kepler, 68 F.3d at 391 (internal quotation marks and
brackets omitted). To be sure, an ALJ is required to do more than “simply
recite[] the general factors he considered . . . . [without] refer[ring] to any
specific evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). But
“our opinion in Kepler does not require a formalistic factor-by-factor recitation of
the evidence. So long as the ALJ sets forth the specific evidence he relie[d] on in
evaluating the claimant’s credibility, the dictates of Kepler are satisfied.” Id.The ALJ began his credibility assessment by citing the applicable Social
Security regulations and rulings governing the evaluation of symptoms. He
observed that Ms. Qualls “testified . . . that she is unable to work due to her
inability to retain information.” Aplt. App., Vol. 2 at 16. He then listed her
reported symptoms, see supra note 2, and detailed her subjective complaints,
3
(...continued)
Id. at 1070 (emphasis added). As such, we rejected the claimant’s assertion in
Wall “that the ALJ evaluated Claimant’s credibility under an improper
[objectively-verified] standard.” Id. at 1069. The same is true in this case, as is
demonstrated in our discussion of the ALJ’s credibility analysis below, and we
therefore reject Ms. Qualls’ argument that the ALJ imposed an incorrect standard
of proof in evaluating her credibility.
-7-
see Aplt. App., Vol. 2 at 16. In doing so, he recounted Ms. Qualls’ testimony that
she “can do the majority of housework except that she does not vacuum often[,]”
“[h]er step-daughter plays softball and she goes to the games except when it’s
hot[,]” “[s]he is able to care for her personal hygiene except when her hand[s] and
arms are numb,” she “drive[s] and shop[s] with her husband[,]” and “does
scrap-booking (when she can); sewing (using the same pattern); and girl scouting
(20 girls that she basically baby sits).” Id. 4 It was at this point that the ALJ
found Ms. Qualls’ “statements concerning the intensity, persistence and limiting
effects of [her] symptoms . . . not credible to the extent they [we]re inconsistent
with” performing a full range of light work. Aplt. App., Vol. 2 at 16. The ALJ’s
credibility assessment did not end there though.
4
Earlier in his decision, when the ALJ was considering Ms. Qualls’
depression, he recited her reported daily activities (taken from the Function
Report Ms. Qualls completed and submitted to the Social Security
Administration):
she gets up; gets dressed; wakes her daughters; and gets them dressed
for school. Claimant prepares breakfast, feeds the children and
[her]self. She takes her daughter to school and then comes home to
work on cleaning the house. [She] [p]repares her youngest daughter
lunch and then puts her down for a nap. Claimant will usually also
take a nap. After nap [she] goes to pick up [her] other daughter from
school. [Then she prepares] dinner; cleans up [the] kitchen; then
get[s] the children ready for bed. Claimant then goes to bed to sleep.
Claimant list[s] houshold chores of cleaning, laundry, and ironing.
Aplt. App., Vol. 2 at 14 (citing id. at 140, 147).
-8-
The ALJ next turned to the medical evidence, which he chronicled. He
noted that Ms. Qualls’ treating neurologist, who diagnosed her with MS in 2001,
only saw her once in 2006, twice in 2007, and three times in 2008, and that the
treating neurologist’s “progress notes reflect MS as stable” throughout. Id. at 17. 5
The ALJ also described a consulting physician’s documentation of Ms. Qualls’
subjective complaints and the physician’s examination findings, including his
determination that Ms. Qualls’:
bone[s] and joints revealed the cervical, thoracic and lumbar spines
are perfectly supple and can be put through a full
range-of-movement. There is no scoliosis, tenderness or muscle
spasm. The upper extremities are unremarkable. The thumb
effectively opposes to the finger tips. Fine movement is
well-preserved and she can manipulate small objects. Grip strength
is rated 5/5 bilaterally. The lower extremities are unremarkable. She
can heel-walk, toe-walk and adduct the lower extremities. Gait is
perfectly safe, stable and of normal speed and she requires no
assistive device.
Aplt. App., Vol. 2 at 17-18; see also id. at 18 (according consulting physician’s
opinion “controlling weight”). The ALJ also described Ms. Qualls’ two visits to
the Eye Clinic in Ponca City, noting double vision that comes and goes (but is
increased when she is tired), and that glasses help to decrease her double vision. 6
5
We count three office visits in 2006, but this minor difference is
immaterial. See Aplt. App., Vol. 2 at 195, 196.
6
The ALJ’s decision did not mention esophoria, “[a] tendency for the eyes to
turn inward,” Stedmans Medical Dictionary 138540 (27th ed. 2000), which is
documented in one of Ms. Qualls’ two visits to the Eye Clinic in Ponca City,
Aplt. App., Vol. 2 at 242. Additionally, Ms. Qualls complains that the ALJ’s
(continued...)
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Next, the ALJ identified Ms. Qualls’ daily medications (Copaxone for MS,
Wellbutrin for depression, and Nasonex for allergies), and medications she takes
on an as-needed basis (Midrin for tension and migraines and Relpax for
migraines). He also observed that Ms. Qualls testified that her treating
neurologist advised her “she would just have to learn to deal with the migraines,”
and that Ms. Qualls “appears to have the depression stabilized with the
medication.” Aplt. App., Vol. 2 at 18. Having discussed all of the foregoing, the
ALJ then made the statement Ms. Qualls finds objectionable, that her “allegedly
6
(...continued)
decision did not mention her “abnormal toe signs, . . . asymmetrical deep tendon
reflexes, . . . positive Lhermitte’s sign,” or her alleged need for “a cane for
ambulation.” Aplt. Opening Br. at 27-28 (citing Aplt. App., Vol. 2 at 205, 207);
Aplt. Opening Br. at 34. Lhermitte sign, “sudden electric-like shocks extending
down the spine on flexing the head,” Stedmans Medical Dictionary 373770
(27th ed. 2000), is documented in a March 2001 letter from Ms. Qualls’ treating
neurologist, Aplt. App, Vol. 2 at 207, which the ALJ explicitly considered in his
decision, id. at 17. Abnormal toe signs and asymmetrical deep tendon reflexes
are documented, as best we can decipher, in an April 2001 progress note made by
Ms. Qualls’ treating neurologist, id. at 205. Her treating neurologist’s 2001 letter
and 2001 progress note do not, however, list any work-related limitations
associated with her positive Lhermitte’s sign, abnormal toe signs, and
asymmetrical deep tendon reflexes. (These records also pre-date Ms. Qualls’
alleged onset date by nearly three years.) And, there is not a prescription for a
cane noted anywhere in the medical evidence. Moreover, where, as here, the
ALJ’s decision states that he considered all of the evidence, “our general practice,
which we see no reason to depart from here, is to take a lower tribunal at its word
when it declares that it has considered a matter.” Hackett v. Barnhart, 395 F.3d
1168, 1173 (10th Cir. 2005); see also Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996) (stating that the “ALJ is not required to discuss every piece of
evidence”).
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limited daily activities cannot be objectively verified with any reasonable degree
of certainty . . . .” Id.; see Wall, 561 F.3d at 1069-70 (rejecting claimant’s
argument that ALJ evaluated claimant’s credibility under an improper
objectively-verified standard, concluding that ALJ’s alleged improper standard
was merely the ALJ’s “observation that [he] would not treat Claimant’s testimony
as ‘strong evidence’ of her disability due to his prior determination that
Claimant’s testimony was not ‘fully credible’” (emphasis added)). See also supra
note 3.
The ALJ went on to bolster his adverse credibility finding, stating:
After all, the claimant did testify that she was able to help care for
her family, [do] household chores, girl scouts, and sewing. She
testified to memory problems but she stated that she was able to sew
and use the computer which one would reasonab[ly] assume[]
requires concentration and hand dexterity. Additionally, claimant
testified that her treating [neurologist] wanted claimant to stop work
yet there was no mention of work in any of [the doctor’s] notes . . . .
Overall, the claimant’s reported limited daily activities are
considered to be outweighed by the other factors discussed in this
decision.
The evidence of record clearly shows that claimant has been
diagnosed with MS; and claimant’s testimony, under oath, [was] that
the reason she stopped working was due primarily to her inability to
retain information [and the requirement that] she . . . write
everything down. During her testimony, claimant did not appear to
have any problem understanding the questions from the
Administrative Law Judge [or from] claimant’s representative.
Claimant appeared to be able to respond appropriately to all
questions and answered the questions in a logical manner without any
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difficulty. [7] It would be reasonable to believe that claimant did not
suffer from retention issues as disabling as presented.
Aplt. App., Vol. 2 at 18-19.
As our discussion above demonstrates, and despite the ALJ’s use of
disfavored language, his ultimate credibility determination is grounded in a
thorough analysis that is closely and affirmatively linked to substantial record
evidence. See generally Kepler, 68 F.3d at 391 (setting forth factors ALJ should
consider in making a credibility assessment). Although Ms. Qualls suggests
otherwise, this is not a case where “specific facts behind the generalities”
regarding her alleged minimal activities of daily living “paint a very different
picture” than the one painted by the ALJ. Krauser v. Astrue, 638 F.3d 1324, 1332
(10th Cir. 2011). 8
7
Ms. Qualls’ argument that the ALJ improperly relied on a “‘sit and squirm’
demand” in noting that she “‘did not appear to have any problem understanding
questions,’” Aplt. Opening Br. at 33, is without merit. “Although an ALJ may not
rely solely on his personal observations to discredit a [claimant’s] allegations, he
may,” as the ALJ in this case did, “consider his personal observations in his
overall evaluation of the claimant’s credibility.” Qualls, 206 F.3d at 1373; see
also SSR 96-7p, 1996 WL 374186, at *8 (“In instances in which the adjudicator
has observed the individual, the adjudicator is not free to accept or reject the
individual’s complaints solely on the basis of such personal observations, but
should consider any personal observations in the overall evaluation of the
credibility of the individual’s statements.” (emphasis added)).
8
Contrary to Ms. Qualls’ assertion that it “was never established how often
she went [to church],” Aplt. Opening Br. at 30, the consulting psychologist
documented Ms. Qualls’ “report[]” that she “attends church once a week.”
Aplt. App., Vol. 2 at 193. Likewise, and contrary to Ms. Qualls’ assertion, it is
not “well documented in the medical records” that her “symptoms were at times
(continued...)
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Further, the ALJ was under no obligation to confirm Ms. Qualls’ activities
of daily living by contacting Ms. Qualls’ mother, the individual that Ms. Qualls
had “named for that purpose.” Aplt. Opening Br. at 26. Nor does Ms. Qualls
offer any authority in support of that argument. See id. Similarly, the ALJ was
under no obligation to recontact Ms. Qualls’ treating neurologist to inquire about
why his medical records did not reflect Ms. Qualls’ testimony that the treating
neurologist did not want her to work, see id. at 32, because the evidence from the
treating neurologist was not “inadequate to determine if the claimant [was]
disabled,” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Cf. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (observing that
ALJ had obligation to recontact treating physician if validity of his report was
open to question).
Finally, Ms. Qualls contends the ALJ “demonstrated bias” by making up
“his mind that [she] was not disabled before hearing the evidence.” Aplt.
Opening Br. at 35. In support, she cites two statements the ALJ made at the
beginning of her administrative hearing: (1) “some people have MS, and work for
20 years”; and (2) “quite frankly, on the medical I have right now, I’d send her
8
(...continued)
more severe than others.” Aplt. Opening Br. at 28. Rather, the two medical
records to which she directs us on this point (one from 2001 and one from 2006)
contain isolated self-reports about her symptoms. See Aplt. App., Vol. 2 at 173,
206-08.
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back to work, okay?” Aplt. App, Vol. 2 at 27, 29. In response, the Commissioner
contends that these “stray” remarks, in the context of the entire hearing, show that
the ALJ was “commenting on the lack of medical evidence and in fact, told
Qualls[’] [representative that she] could submit additional evidence.” Aplee. Br.
at 30. On the facts of this case, we agree with the Commissioner and reject
Ms. Qualls’ bias argument. Our review of the record reveals that Ms. Qualls
“received a full and fair opportunity to develop the record and [to] present”
evidence. Puckett v. Chater, 100 F.3d 730, 734 (10th Cir. 1996); see also Harline
v. Drug Enforcement Admin., 148 F.3d 1199, 1204 (10th Cir. 1998) (observing
that ALJ “enjoys a presumption of honesty and integrity”).
The ALJ’s Step Four Determination
Ms. Qualls raises what appear to be two arguments under the broad
category of alleged errors at “steps 4 and 5.” Aplt. Opening Br. at 20. First, she
takes issue with the ALJ’s hypothetical to the VE, asserting that it erroneously
omitted specific limitations for physical demands set forth in 20 C.F.R.
§ 404.1545(b). As a result, she claims we “have no way of knowing what
limitations, if any, the VE applied in formulating her answers to the ALJ.” Aplt.
Opening Br. at 21. Second, she contends the ALJ erroneously failed to consider
all of her impairments throughout the disability process, arguing that the ALJ’s
hypothetical to the VE erroneously omitted “all the limitations of record, even the
nonsevere ones.” Id. at 22. In particular, she challenges the ALJ’s omission of
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limitations due to migraine pain, dizziness and vertigo, poor balance, the cyclical
nature of MS, and impaired vision.
We understand these arguments to be challenges to the ALJ’s RFC
assessment. Given the applicable sequential evaluation process, we begin by
examining Ms. Qualls’ arguments at step four, where she bore the burden of
demonstrating “that her impairment prevents her from performing work she has
previously performed.” Fischer-Ross, 431 F.3d at 731; see also Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (observing that step four “is
comprised of three phases”: (1) evaluating the claimant’s physical and mental
RFC, (2) determining the physical and mental demands of claimant’s PRW, and
(3) determining “whether the claimant has the ability to meet the job demands
found in phase two despite the mental and/or physical limitations found in phase
one”).
“In determining a claimant’s physical abilities, the ALJ should . . . assess
the nature and extent of the claimant’s physical limitations and then determine the
claimant’s residual functional capacity for work on a regular and continuing
basis.” Winfrey, 92 F.3d at 1023 (brackets and internal quotation marks omitted).
This involves consideration of the claimant’s “impairment(s), and any related
symptoms . . . [that] may cause physical and mental limitations that affect what
[the claimant] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).
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Here, the ALJ indicated that he had carefully considered the entire record
and found that between Ms. Qualls’ alleged onset date and her DLI, she retained
the RFC to perform a full range of light work. See 20 C.F.R. § 404.1567(b)
(defining light work). In making this finding, the ALJ explained that he had
considered all of Ms. Qualls’ “symptoms and the extent to which [they could]
reasonably be accepted as consistent with the objective medical evidence and
other evidence.” Aplt. App., Vol. 2 at 15. He detailed her hearing testimony,
including subjective complaints; considered her daily activities; documented the
medical and other evidence of record, including her medications; adversely
assessed her credibility; and evaluated her demeanor. See SSR 96-8p, 1996 WL
374184, at *5 (identifying evidence relevant to an RFC assessment).
Prior to posing his hypothetical, the ALJ asked the VE to describe
Ms. Qualls’ “work history.” Aplt. App., Vol. 2 at 48. The VE stated that
Ms. Qualls had worked as “a cashier, which is light in exertion, semiskilled, SVP
of three[,]” and that she had worked as “customer support, or customer service
representative,” which is sedentary in exertion, with a SVP of three. Id. 9
9
The VE also described Ms. Qualls’ prior work as a “child care assistant,”
which the VE explained was medium in exertion with a SVP of five. Aplt. App.,
Vol. 2 at 48. At the end of the hearing, however, it was clarified that Ms. Qualls
had only worked in the childcare position for two weeks, a duration the ALJ
found too brief for Ms. Qualls to have acquired the position’s required skills.
Id. at 51. See 20 C.F.R. § 404.1560(b)(1) (defining PRW as work that occurred
within the past fifteen years, was substantial gainful activity, and that “lasted long
(continued...)
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In his hypothetical, the ALJ asked the VE to consider an individual who
possessed a
[twelfth] grade education; good ability to read, write, and use
numbers. She would have the capability of performing -- are you
familiar with the elements of medium, light, and sedentary work
activity?
A [VE] Yes, I am.
....
Q [ALJ] Okay. She has been diagnosed as having [an] affective
disorder; however, it’s nonsevere. There would be no work-related
limitations in that regard. She is taking currently certain medications
to help her with any symptomatology she might have. The
medication usage does not interfere with her ability to, to remain
reasonably alert to perform required functions presented in a work
setting. Assuming this hypothetical, could she return to any of her
past relevant work, either as she has described it, or as that work is
customarily performed?
A [VE] Yes, she could. There are no limitations in that hypothetical
that would prevent her return to [her past relevant work].
Aplt. App., Vol. 2 at 48-49 (emphasis added).
Based on the foregoing, we reject Ms. Qualls’ allegation that we have no
way of knowing what limitations the VE applied in formulating her answers to the
9
(...continued)
enough for [the claimant] to learn to do it”); SSR 82-62, 1982 WL 31386, at *2
(1982) (explaining that how long it takes for one to learn to do a job “depends on
the nature and complexity of the work”). When the VE stated that Ms. Qualls had
only worked in the childcare position for two weeks, the ALJ seemingly
dismissed that occupation as exceeding Ms. Qualls’ RFC, stating, “that was at
medium, anyway? Was that correct?” The VE responded, “Right.” Aplt. App.,
Vol. 2 at 51.
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ALJ. The VE specifically testified that she was familiar with the requirements of
medium, light, and sedentary work activity, and we are therefore not left to guess
what occurred in the VE’s head. Cf. Winfrey, 92 F.3d at 1025. The limitations
the VE applied in formulating her answer are clearly the limitations set forth in
20 C.F.R. § 404.1567 (defining sedentary, light, medium, and heavy work).
See also supra note 9.
We also reject Ms. Qualls’ contention that the ALJ’s hypothetical to the VE
erroneously omitted “all the limitations of record, even the nonsevere ones.”
Aplt. Opening Br. at 22. The ALJ’s decision does not reflect that he ignored
many of Ms. Qualls’ so-called “limitations of record,” but rather, that he found
her subjective complaints and statements concerning the intensity, persistence and
limiting effects of her symptoms—including, as he observed, migraines that come
and go, double vision; balance problems, problems with numbness, and an
inability to retain information—not credible to the extent they were inconsistent
with performing a full range of light work. This credibility determination enjoys
substantial evidentiary support in the record, as previously detailed. With respect
to Ms. Qualls’ contention regarding nonsevere impairments, she misrepresents the
ALJ’s hypothetical. It specifically enumerated Ms. Qualls’ affective disorder
(depression), the single nonsevere impairment identified by the ALJ. And the
ALJ instructed the VE that this nonsevere impairment did not yield any
“work-related limitations.” Aplt. App., Vol. 2 at 48.
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Accordingly, we conclude that the ALJ’s hypothetical adequately reflected
the “impairments and limitations that [were] borne out by the evidentiary record,”
and that Ms. Qualls has not identified any reversible error in the ALJ’s decision
to deny benefits at step four of the sequential evaluation process. Decker v.
Chater, 86 F.3d 953, 955 (10th Cir. 1996) (citation omitted); Evans v. Chater,
55 F.3d 530, 532 (10th Cir. 1995) (stating that the ALJ’s hypothetical questions
“must include all (and only) those impairments borne out by the evidentiary
record”). Because we affirm the ALJ’s finding of nondisability at step four, we
do not need to consider Ms. Qualls’ arguments at step five. See Murrell, 43 F.3d
at 1389 (“[D]ue to the way the sequential analysis is structured, a proper finding
of disability (at step three) or nondisability (at steps two, four, or five) is
conclusive and, thus, cannot be overturned by consideration of a subsequent
step.”).
III.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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