Wilson v. Astrue ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
POLLY A. WILSON,
Plaintiff-Appellant,
v. No. 08-3325
(D.C. No. 6:07-CV-01147-JTM)
MICHAEL J. ASTRUE, Commissioner (D. Kan.)
of Social Security Administration,
Defendant-Appellee.
ORDER
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
The Appellee has filed a motion to publish the order and judgment
previously issued on February 17, 2010. The motion is GRANTED. The
published opinion is filed nunc pro tunc to that date, and a copy is attached.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
February 17, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
POLLY A. WILSON,
Plaintiff-Appellant,
v. No. 08-3325
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CV-01147-JTM)
Submitted on the briefs: *
David H.M. Gray, Gragert, Hiebert, Gray & Link, Wichita, Kansas, for
Plaintiff-Appellant.
Marietta Parker, Acting United States Attorney, Anne M. Mackland, Special
Assistant United States Attorney, Kristi A. Schmidt, Chief Counsel, Region VII,
Social Security Administration, Kansas City, Missouri, for Defendant-Appellee.
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
BRORBY, Senior Circuit Judge.
Plaintiff-appellant Polly A. Wilson appeals from an order of the district
court affirming the Commissioner’s decision denying her applications for Social
Security disability and for Supplemental Security Income benefits (SSI).
Ms. Wilson alleged an disability onset date of June 26, 1998. Her date last
insured was December 31, 2002; thus she had the burden of proving that she was
totally disabled on that date or before. See Henrie v. U.S. Dep’t of Health &
Human Servs., 13 F.3d 359, 360 (10th Cir. 1993) (holding the claimant “must
prove she was totally disabled prior to [the date her insured status expired]”).
The agency denied her applications initially and on reconsideration.
On August 16, 2005, Ms. Wilson received a de novo hearing before an
administrative law judge (ALJ). The Commissioner follows a five-step sequential
evaluation process to determine whether a claimant is disabled. See Williams v.
Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
Step one requires the claimant to demonstrate that he is not presently
engaged in substantial gainful activity. At step two, the claimant
must show that he has a medically severe impairment or combination
of impairments. At step three, if a claimant can show that the
impairment is equivalent to a listed impairment, he is presumed to be
disabled and entitled to benefits. If a claimant cannot meet a listing
at step three, he continues to step four, which requires the claimant to
show that the impairment or combination of impairments prevents
him from performing his past work.
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If the claimant successfully meets this burden, the burden of
proof shifts to the Commissioner at step five to show that the
claimant retains sufficient RFC [residual functional capacity] to
perform work in the national economy, given her age, education, and
work experience. If a determination can be made at any of the steps
that a claimant is or is not disabled, evaluation under a subsequent
step is not necessary.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and
citations omitted; brackets in original).
In his October 12, 2005, decision, the ALJ determined that Ms. Wilson was
not presently engaged in substantial gainful activity and that she did have a
medically severe combination of impairments, including the following severe
impairments: degenerative disc disease of the cervical and lumbar spine, mitral
valve prolapse, history of carpal tunnel, depression, personality disorder,
somatoform disorder, and methamphetamine abuse. Admin. R., Vol. I at 22. At
step three, the ALJ determined that Ms. Wilson’s combination of impairments did
not meet or equal a listed impairment. The ALJ determined that she retained the
RFC to perform a range of light activities and was physically “limited to lifting or
carrying 10 pounds frequently and 20 pounds occasionally, sitting about 6 hours
in an 8 hour work day, and standing or walking about 6 hours in an 8 hour work
day.” Id. at 23. The ALJ also determined that Ms. Wilson’s mental limitations
“include moderate limitations in the ability to understand, remember, and carry
out detailed instructions; maintain attention and concentration for extended
periods; interact appropriately with the general public; and get along with
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coworkers or peers without distracting them or exhibiting behavioral extremes.”
Id. With this RFC, the ALJ found that Ms. Wilson could return to her past
relevant work as a phlebotomist, and that even if she could not return to her past
relevant work, there were a significant number of other jobs which she could
perform in the national or regional economy. The ALJ therefore held that
Ms. Wilson had not been under a disability from the alleged date of onset to the
date of the ALJ’s decision. The Appeals Council denied review, making the
ALJ’s decision the Commissioner’s final decision.
On appeal, Ms. Wilson raises five points of error: (1) the ALJ failed to
properly consider her psychotic disorder in determining her RFC; (2) the ALJ
failed to properly consider her myofascial pain syndrome in determining her RFC;
(3) the ALJ erroneously evaluated her credibility; (4) the ALJ improperly
evaluated several treating source opinions; and (5) the district court erred by
failing to remand the case to the agency for consideration of new and material
evidence.
Under the Social Security Act, the Social Security Administration
(SSA) is authorized to pay disability insurance benefits and
Supplemental Security Income to persons who have a “disability.” A
person qualifies as disabled, and thereby eligible for such benefits,
“only if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy.”
-4-
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B)). “Under the Social Security Act, a claimant is
disabled if she is unable to do ‘any substantial gainful activity by reason of any
medically determinable physical or mental impairment which . . . can be expected
to last for a continuous period of not less than 12 months.’” Wall v. Astrue,
561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)) (ellipsis in
original). We review the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied. See Andrade v. Sec’y of Health &
Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)
(quotation omitted). We review the district court’s denial of Ms. Wilson’s motion
for remand for an abuse of discretion. See Clem v. Sullivan, 894 F.2d 328, 332
(9th Cir. 1990).
I.
Ms. Wilson has a long history of drug addiction and mental illness. Her
first argument is that the ALJ failed to properly consider her psychotic disorder in
determining her RF C. Her psychotic disorder was first diagnosed on October 27,
2003, by Cathy Shaffer, a therapist for High Plains Mental Health Center (High
Plains). Admin. R., Vol. I at 376. The diagnosis was confirmed by evaluations
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performed by Dr. Susan Harper at High Plains on December 18, 2003; January 13,
2004; and January 26, 2004. Id. at 371-74. The ALJ did not find her psychotic
disorder to be severe at step two of the sequential evaluation. But the ALJ was
still required to give consideration to the disorder because, in determining RFC,
an ALJ must “consider the limiting effects of all [the claimant’s] impairment(s),
even those that are not severe[.]” 20 C.F.R. §§ 404.1545(e), 416.945(e); see also
S.S.R. 96-8p, 1996 WL 374184, at *5.
Ms. Wilson does not argue that the record shows specific limitations caused
by her psychotic disorder that should have been included in the RFC. She instead
argues that the decision shows the ALJ ignored her psychotic disorder. She
argues that this insufficient consideration is shown by the ALJ’s failure to
identify which of her limitations were caused by the psychotic disorder, his failure
to find the psychotic disorder a severe mental impairment at step two, and his
failure to discuss certain evidence concerning the symptoms of her disorder.
When considering mental impairments, the ALJ must properly apply the
special technique required by the regulations.
When there is evidence of a mental impairment that allegedly
prevents a claimant from working, the ALJ must follow the
procedure for evaluating mental impairments set forth in 20 C.F.R.
§§ 404.1520a and the Listing of Impairments and document the
procedure accordingly. This procedure requires the ALJ to rate the
degree of the claimant’s functional limitation based on the extent to
which the claimants mental impairment(s) interferes with the
claimant’s ability to function independently, appropriately,
effectively, and on a sustained basis. Previously, to record his
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conclusions, the ALJ prepared a standard document called a
Psychiatric Review Technique Form (PRT form) that tracked the
listing requirements and evaluated the claimant under the relevant
criteria. Now, he is only to document application of the technique in
the decision.
Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (quotations, citations,
and alterations omitted).
Here the ALJ applied the special technique and rated Ms. Wilson’s
functional limitations by essentially following the conclusions of Dr. Charles
Frantz, a consulting physician, contained in two PRT forms from August 29,
2003, prior to the diagnosis of psychotic disorder. 1 The ALJ found that
Ms. Wilson had a severe combination of mental impairments, concluding that
“claimant has no restrictions in daily activities, moderate difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration,
persistence or pace without evidence of repeated episodes of decompensation.”
Admin. R., Vol. I at 22.
In determining Ms. Wilson’s RFC, the ALJ tracked the findings in
Dr. Franz’ Mental RFC Assessment, also from August 29, 2003. 2 The ALJ
1
We note that there are two other PRT forms in the record: one from
April 29, 2000, and one from March 8, 2001. Neither of these forms rates any of
Ms. Wilson’s functional limitations as greater than moderate.
2
The ALJ’s decision stated that he was “in general agreement with the
medical opinions of the State agency medical consultants regarding the claimant’s
ability to do work-related activities.” Id. at 23. He explicitly noted that
“[a]lthough they did not examine the claimant, they provided specific reasons for
(continued...)
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included the following mental limitations in the RFC: “moderate limitations in
the ability to understand, remember, and carry out detailed instructions; maintain
attention and concentration for extended periods; interact appropriately with the
general public; and get along with coworkers or peers without distracting them or
exhibiting behavioral extremes.” Id. at 23. Despite the fact that the ALJ tracked
a Mental RFC Assessment that was completed prior to Ms. Wilson’s psychotic
disorder diagnosis, he did take that disorder diagnosis into account. He simply
determined that the diagnosis did not affect Ms. Wilson’s level of functionality.
First, although Dr. Franz initially completed the PRT forms and the Mental
RFC Assessment, both the forms and the assessment were reconsidered and
affirmed by a second doctor, Dr. R.E. Schulman, on March 31, 2004, after the
psychotic disorder diagnosis by High Plains. The ALJ was clearly aware of this
reconsideration in that, immediately after expressing his agreement with the
agency medical consultants, he specifically stated: “[t]he undersigned finds that
evidence received into the record after the reconsideration did not provide any
new or material information that would alter any finding about the claimant’s
residual functional capacity.” Id. (emphasis added). Second, in specifically
discussing the High Plains psychotic disorder diagnosis, the ALJ noted that,
2
(...continued)
their opinions about the claimant’s residual functional capacity showing that they
were grounded in the evidence in the case records, including careful consideration
of the claimant’s allegations about symptoms and limitations.” Id. at 23.
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despite the additional diagnosis, High Plains did not reduce its rating of
Ms. Wilson’s global assessment of functioning (GAF) from 60. 3 Id. at 20. In
other words, it is clear that although High Plains adjusted Ms. Wilson’s diagnosis
after Dr. Franz’ assessments, the center did not believe that Ms. Wilson’s level of
functioning was adversely affected by the additional diagnosis.
Thus, although the ALJ did not go into the specifics about the symptoms
that led to the psychotic disorder diagnosis, he made the findings required by
20 C.F.R. § 404.1520a, and considered the psychotic disorder diagnosis in doing
so. Those findings were supported by substantial evidence in that the ALJ
agreed with the findings of the agency medical consultants, including the
reconsideration after the psychotic disorder diagnosis, and noted that, according
to the clinicians who made the additional diagnosis, it did not have an impact on
Ms. Wilson’s level of functioning.
3
The GAF is a subjective rating on a scale of 1 to 100 of “the clinician’s
judgment of the individual’s overall level of functioning.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (Text
Revision 4th ed. 2000) at 32. A GAF score of 51-60 indicates “moderate
symptoms,” such as a flat affect, or “moderate difficulty in social or occupational
functioning.” Id. at 34.
-9-
II.
In her second point, Ms. Wilson claims that the ALJ also failed to properly
consider her myofascial pain syndrome diagnosis in determining her RFC. 4 On
October 13, 2003, Ms. Wilson underwent a neuromuscular examination by
Dr. April McVey. Dr. McVey’s impression following the examination was:
I believe that this patient has myofascial pain syndrome.
I understand that she is filing for Social Security Disability. I did
explain to the patient that without any objective abnormalities on her
neurological examination or on the electrodiagnostic studies, she
probably will not receive approval from Social Security for
disability.
Admin. R., Vol. II at 683. This diagnosis was noted by the ALJ in his decision:
“Dr. McVey noted possible myofascial pain syndrome and advised the claimant
that without any objective abnormalities on her neurological examination [or] on
the electrodiagnostic studies, she would probably not receive approval from
Social Security for disability.” Id., Vol. I at 20.
Doctors at the Hays Orthopaedic Clinic (Hays) had also previously
diagnosed Ms. Wilson with myofascial pain syndrome. She had been treated by
Hays for some time for complaints of back, neck, shoulder, and arm pain. On
March 18, 2003, the physician’s assistant and doctor who had been treating her
4
“‘Myofascial syndrome,’ also known as ‘myofascial pain syndrome’ is
defined as ‘irritation of the muscles and fasciae (membranes) of the back and
neck causing chronic pain (without evidence of nerve or muscle disease).’”
Smith v. J.I. Case Corp., 163 F.R.D. 229, 231 (E.D. Pa. 1995) (quoting Schmidt’s
Attorneys’ Dictionary of Medicine M-323 (1978)).
-10-
noted that they had been seeing Ms. Wilson for several months and had not made
any gains with rehabilitation despite her nerve conduction and MRI test results
being “essentially normal for the most part.” Id., Vol. II at 579. They decided to
have Dr. Smith evaluate Ms. Wilson, which he did on March 24, 2003.
Dr. Smith stated in his report: “I believe this lady essentially has a chronic
pain syndrome that seems to fit more into a pattern of fibromyalgia.” Id. at 577.
After another visit, Dr. Smith decided to have Dr. Mizra Baig examine
Ms. Wilson, because of her claim of severe neck pain, “for an opinion to see if
there is any other treatment that may be of benefit including surgery.” Id. at 576.
Dr. Baig diagnosed Ms. Wilson with a cervical strain and myofascial pain
syndrome. She then returned to Dr. Smith who noted that “Dr. Baig . . . could not
find any good organic reason for her pain and thought it was mostly myofascial.”
Id. at 572. He also noted that Ms. Wilson told him that she was diagnosed at one
time with chronic fatigue syndrome. Id. Dr. Smith last saw Ms. Wilson on
June 6, 2003, when his final diagnosis was “[c]hronic pain syndrome with
multiple musculoskeletal complaints including myofascial pain.” Id. at 570.
Ms. Wilson complains that the ALJ erred in stating that Dr. McVey
considered myofascial pain syndrome a “possibility.” We see no error with this
statement or with the ALJ’s treatment of her myofascial pain syndrome. Although
Ms. Wilson complained of severe pain in her back and neck, which sometimes
radiated to pain in other areas, multiple clinical tests were unable to find a
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physical cause for that level of pain. Thus, the record contains diagnoses of
chronic pain syndrome, myofascial pain syndrome, and fibromyalgia. Further, she
self-reported being diagnosed at one time with chronic fatigue syndrome, and she
was also diagnosed with the somatoform disorder characterized by
“[p]sychological factors contributing to perception of pain,” id. at 640. The fact
that the various doctors often qualified their diagnoses with the word “believe”
simply reflects the fact that complaints of severe pain that do not readily lend
themselves to analysis by objective medical tests are notoriously difficult to
diagnose and treat, and the diagnoses themselves are often overlapping. See
Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17 n.5 (1st Cir. 2003)
(“While the diagnoses of chronic fatigue syndrome and fibromyalgia may not lend
themselves to objective clinical findings, the physical limitations imposed by the
symptoms of such illnesses do lend themselves to objective analysis.”); Estok v.
Apfel, 152 F.3d 636, 638 (7th Cir. 1998) (“[N]o one questions that fibromyalgia is
very difficult to diagnose, that no objective medical tests reveal its presence, and
that it can be completely disabling.”); Sarchet v. Chater, 78 F.3d 305, 306
(7th Cir. 1996) (“[F]ibromyalgia [is] also know as fibrositis-a common, but
elusive and mysterious, disease, much like chronic fatigue syndrome, with which
it shares a number of features.”); Sisco v. U.S. Dep’t of Health & Human Servs.,
10 F.3d 739, 744 (10th Cir. 1993) (“At this point there is no ‘dipstick’ laboratory
test for chronic fatigue syndrome.”); Stanistreet v. Chater, 21 F. Supp. 2d 1129,
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1133 n.11 (C.D. Cal. 1995) (citing 2 Schmidt’s Attorneys’ Dictionary of Medicine
at M-323 (1995 ed.), in determining that “[m]yofascial syndrome describes a
condition very similar to fibromyalgia and fibrositis”).
Further, Ms. Wilson argues that the fact that the ALJ noted Dr. McVey’s
statement that she “advised the claimant that without any objective abnormalities
on her neurological examination [or] on the electrodiagnostic studies, she would
probably not receive approval from Social Security for disability,” Admin. R.,
Vol. I at 20, shows that the ALJ’s finding of disability was based on the negative
neurological testing. This is pure speculation. The ALJ might have referenced
Dr. McVey’s statement in its entirety simply because the diagnosis was so short.
Or, more likely, the ALJ included the reference to the negative neurological
testing to provide another example of Ms. Wilson expressing to a clinician her
desire to obtain social security disability benefits, which, as will be discussed
further infra, was a factor the ALJ considered in assessing credibility. It is clear
from the decision, taken as a whole, that the ALJ was aware that a claimant’s pain
may be considered disabling despite the absence of neurological testing
objectively showing a reason for such pain. Thus, we must turn to Ms. Wilson’s
credibility argument.
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III.
In her third point, Ms. Wilson claims the ALJ erred in evaluating her
testimony. To the extent Ms. Wilson is trying to argue that there was not
substantial evidence to support the ALJ’s determination that she was not entirely
credible, we disagree.
“Credibility determinations are peculiarly the province of the
finder of fact, and we will not upset such determinations when
supported by substantial evidence.” Diaz v. [Sec’y] Secretary of
Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).
However, “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion
in the guise of findings.” Huston [v. Bowen], 838 F.2d [1125,] 1133
[(10th Cir. 1988)] (footnote omitted); see also Marbury v. Sullivan,
957 F.2d 837, 839 (11th Cir. 1992) (ALJ “must articulate specific
reasons for questioning the claimant’s credibility” where subjective
pain testimony is critical); Williams [ex rel.] Williams v. Bowen,
859 F.2d 255, 261 (2d Cir. 1988) (“failure to make credibility
findings regarding . . . critical testimony fatally undermines the
[Commissioner’s] argument that there is substantial evidence
adequate to support [her] conclusion that claimant is not under a
disability”).
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
There can be no doubt that Ms. Wilson’s testimony was not entirely
credible. Even the briefest review of the record reveals a number of instances of
deception concerning her drug use and other topics. The ALJ’s decision points
out a number of these instances of misrepresentation, and the record contains
many more. We thus hold that there was substantial evidence to uphold the ALJ’s
general negative credibility determination.
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As we read Ms. Wilson’s briefs, however, her argument is not so much that
her testimony was credible as a whole, but that the ALJ drew incorrect inferences
from her non-credible testimony. We must therefore look at the specific
credibility findings made by the ALJ, beginning with his credibility finding as to
Ms. Wilson’s claims of disabling pain. Ms. Wilson argues that the ALJ failed to
properly analyze her claims of disabling claims.
“The framework for the proper analysis of Claimant’s evidence of
pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is
a ‘loose nexus’ between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all
the evidence, both objective and subjective, Claimant’s pain is in fact
disabling.”
Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004) (quoting Thompson v.
Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)). We have held that, in
determining whether the claimant’s subjective complaints of pain are credible, the
ALJ should consider various factors, such as:
“the levels of medication and their effectiveness, the extensiveness of
the attempts (medical or nonmedical) to obtain relief, the frequency
of medical contacts, the nature of daily activities, subjective
measures of credibility that are peculiarly within the judgment of the
ALJ, the motivation of and relationship between the claimant and
other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.”
Id. at 1273-74 (quoting Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991)).
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Here the ALJ found that Ms. Wilson’s “medically determinable
impairments could reasonably be expected to produce some of the alleged
symptoms. However, the claimant’s statements concerning the intensity, duration
and limiting effects of these symptoms are not entirely credible.” Admin. R.,
Vol. I at 23. Ms. Wilson argues that the ALJ gave no consideration to “the
possibility that psychological disorders combine with physical problems” when he
evaluated her pain. Aplt. Opening Br. at 18-19 (quoting Luna, 834 F.2d at 166).
She argues that “[t]here were at least two psychiatric disorders that affect [her]
pain, physical functioning, perceptions of her health, and other aspects of her
credibility” and that “[a]n evaluation of her pain and her credibility without
specifically discussing those disorders as they relate to her pain and credibility is
fatally incomplete.” Id. at 20.
Ms. Wilson first discusses her psychotic disorder. To the extent
Ms. Wilson is arguing that her lack of credibility may be attributed to a psychotic
break with reality, we see no evidence in the record to support such a claim. The
few periods in time discussed in the record where an argument might be made that
Ms. Wilson had a loose grip on reality are unrelated to the negative credibility
findings made by the ALJ. Further, she was clearly lucid at the hearing before the
ALJ.
It is possible that Ms. Wilson is arguing that her mental impairments in
combination, including her psychotic disorder, led her to experience disabling
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pain despite the lack of objective medical evidence of a medically determinable
physical impairment that would cause such pain. It is clear that various clinicians
recognized that Ms. Wilson’s testable physical impairments were not of sufficient
severity to account for her complaints of extreme pain–hence the diagnoses of
somatoform disorder, fibromyalgia, pain disorder, etc. But even if Ms. Wilson’s
level of pain was greater due to these untestable conditions, the question still
remains whether her complaints of disabling pain were credible. In finding they
were not, the ALJ did not rely merely on the absence of a testable physical
impairment that would cause such disabling pain. He also relied on evidence
showing that some of Ms. Wilson’s treating physicians thought she was more
interested in obtaining disability benefits than in trying to find work she could do,
that she at times behaved as if she had no disabling pain, and that her non-credible
statements were not confined to her complaints of pain.
It is clear that Ms. Wilson was seeking disability benefits. But it is obvious
that seeking benefits does not lead to an adverse credibility finding; people who
are unable to work need and are entitled to such benefits. While this was
Ms. Wilson’s third application for disability benefits and she had also filed a
medical malpractice claim and workers compensation claims, and while at least
one doctor was more than skeptical about her disability claim, 5 such evidence
5
On July 30, 2003, Dr. Victor Eddy, who was evidently Ms. Wilson’s
primary care physician at the time, wrote:
(continued...)
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standing alone would be insufficient to support an adverse credibility finding as to
a subjective pain complaint.
This was not, however, the only evidence relied upon by the ALJ. He also
noted that while Ms. Wilson did take prescription medications, she did not take
prescription strength pain relief medication despite her claims of disabling pain.
He also noted that her description of her daily activities did not indicate
significant limitations. Although she testified that she had severe pain in her back
and neck, her description of her activities of daily living “indicated the ability to
care for herself, her home and her children.” Admin. R., Vol. I at 21. Ms. Wilson
stated that she was able to drive, shop, and handle finances; that gardening was a
hobby; and that she visited friends and ate out.
5
(...continued)
She is seen and is bound and determined to get Social Security
Benefits. She demands to know why she has pain. . . . She does not
appear disabled. She said she is stressed out and cannot take care of
children and work at same time. That is why she will not work and
she will demand Social Security Benefits. She wants to see a doctor
who will give her this solution to her problems. . . . I therefore
committed to find a person to see her as I think probably most of the
physicians in [town] have told her to get her act together, get her life
together and quit relying on Social Security to solve her problems.
Admin. R., Vol. II at 603. On November 19, 2003, Dr. Eddy wrote:
“[Ms. Wilson] is on a quest for disability, social security and now HUD
Housing.” Id. at 600. Nevertheless, despite Dr. Eddy’s apparent skepticism, he
“[gave] her a note that she can release to who[]ever she wishes, which states that
she should consider [sic] to be disabled until her physical and emotional problems
can be addressed.” Id.
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Further, the ALJ noted that Ms. Wilson’s statements regarding her
limitations were not always credible. She testified that she could not use her
hands but also testified that she, at one point, wrote a county attorney a
fifteen-page letter. Likewise, she testified that she was limited to sitting no
longer than thirty minutes or standing no longer than thirty minutes, a claim
inconsistent with the stated limitation that she was not allowed to drive for longer
than ninety minutes and also inconsistent with the fact that, during the
sixty-five-minute hearing, the ALJ noticed no position alteration or obvious
discomfort by Ms. Wilson and no appearance of pain when she left the hearing.
Such evidence undermines Ms. Wilson’s claims of a disabling level of pain, no
matter the source.
Further, Ms. Wilson testified at the hearing that one of the reasons she
wanted to obtain disability benefits was that she wanted to be able to spend time
taking care of her youngest son who suffered from night terrors. The record
shows that she also provided this reason for seeking disability in her disability
filings as well as relating it to various clinicians. This provides another motive
for misrepresentation of her disability. Finally, the ALJ noted that the record
showed various discrepancies regarding Ms. Wilson’s substance abuse. Her
misrepresentations as to the use of alcohol and exactly when she quit taking drugs
was properly taken into account when considering her overall credibility.
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Consequently, the ALJ’s determination that Ms. Wilson’s testimony of disabling
pain was not credible was supported by substantial evidence.
IV.
In her fourth point on appeal, Ms. Wilson claims that the ALJ improperly
evaluated several treating source opinions. She first claims that the ALJ’s RFC
determination ignored the physical limitations set forth in two work releases given
in January and May of 2003 by two doctors at Hays. While it is true that the
releases contained more significant restrictions than did the eventual RFC
determination, the releases were also inconsistent with each other. Further, the
RFC generally agreed with the findings of a later physical RFC assessment
performed by an agency consultant on December 11, 2003. In turn, in finding that
Ms. Wilson had minimal limitations, the doctor performing the physical RFC
assessment relied heavily on the findings of a consultative physical examination
performed on December 2, 2003, by Dr. Smith, the same Hays doctor who was
responsible for the second, May 2003 work release. That physical RFC
assessment also specifically discussed the limitations contained in Dr. Smith’s
May 2003 release, but suggested that those limitations were not supported by the
rest of the medical record and should not be given controlling weight.
The ALJ, then, specifically noted in his decision that the agency consultants
“provided specific reasons for their opinions about the claimant’s [RFC] showing
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that they were grounded in the evidence in the case records.” Admin. R., Vol. I at
23. Thus, it is clear that the ALJ did not ignore the earlier work releases.
Ms. Wilson next complains that the ALJ mischaracterized Dr. Smith’s
December 2003 consultative examination by stating in his decision that the
examination found “minimal limitations,” id. at 19, or “no significant
limitations,” id. at 25, and that the ALJ’s statement that the limitations noted in
Dr. Smith’s earlier work release “appear[ed] to be based on [Ms. Wilson’s]
subjective complaints,” id., was impermissible speculation. It appears that these
statements were merely referencing the absence of objective medically testable
physical impairments, not concluding that such an absence was dispositive. The
substantive question was whether the pain that was not susceptible to
measurement by objective medical tests was disabling. As noted above, the ALJ
followed the proper procedures in determining that it was not disabling.
Ms. Wilson next makes a brief argument complaining of the following
analysis by the ALJ:
Although the claimant obtained disability assessments in 2000 and
2001 in connection with the malpractice suit, these are given little or
no weight. . . . Dr. Atkinson provided an opinion of disabled in
March 2001 in connection with the malpractice claim based on
projections for the need for additional abdominal surgeries limiting
work. However, this did not occur.
Admin. R., Vol. I at 24 (citations omitted). Ms. Wilson argues that
Dr. Atkinson’s disability assessment was not “based on projections for the need
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for additional abdominal surgeries limiting work.” We disagree. Dr. Atkinson
wrote:
[B]ased upon Dr. Bauer’s description of adhesion formation at the
time of laparoscopy, this patient will have symptoms of abdominal
adhesions for the duration of her life. And she will probably have to
have multiple abdominal operations for pain, intestinal obstruction,
etc. These adhesions and the resulting pain have caused her
permanent disability in the loss of normal range of motion and
physical activity. This in my opinion renders her unable to pursue
any gainful employment.
Id., Vol. II at 538. Ms. Wilson does not argue the fact that Dr. Bauer was
incorrect in 2001 when he predicted that she would experience chronic abdominal
adhesions requiring multiple future operations for pain, intestinal obstruction, and
other side effects. She is apparently arguing that, although she did not develop
symptoms requiring future operations, she still experienced chronic adhesions that
were somehow disabling. But she does not cite to any portion of the record to
support this implicit assertion, and she barely mentioned her malpractice suit in
her testimony before the ALJ and made no reference to any chronic abdominal
adhesions.
Finally, Ms. Wilson complains that the ALJ ignored the following medical
opinions given by care-givers at High Plains in 1999 and 2003. On August 25,
1999, a High Plains therapist included, as part of an “entry referral report,” the
following: “There is a pervasive pattern of interpersonal deficits characterized by
impulsivity, poor judgement, many failed romantic relationships, three children by
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three different fathers, and inability to sustain consistent work behavior.” Id.,
Vol. I at 423-24. On August 4, 2003, another therapist included, as part of an
“entry report”: “The secondary diagnosis of Personality Disorder Not Otherwise
Specified is given as there appears to be a pervasive pattern of interpersonal and
cognitive deficits that is of a longstanding nature and has led to problems in the
areas of impulse control, work behavior, interpersonal relationships, and
self-image.” Id. at 379. There is nothing to show that the ALJ failed to properly
consider these records in issuing his decision. There is obviously no requirement
that the ALJ reference everything in the administrative record. See Wall,
561 F.3d at 1067 (“The ALJ is not required to discuss every piece of evidence.”)
(further quotation omitted). Further, there is no question that Ms. Wilson has
serious long-term mental health limitations that clearly impact her life. The
question is whether the limitations are so great that Ms. Wilson is permanently
disabled. Neither of these records reaches or supports such a conclusion.
V.
Finally, Ms. Wilson argues that the district court erred by failing to remand
her case to the agency for consideration of new and material evidence under
sentence six of 42 U.S.C. § 405(g). On January 21, 2008, Ms. Wilson submitted a
motion to the district court to supplement her brief to add two exhibits and to
argue that remand was necessary. Under § 405(g):
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The court . . . may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a
prior proceeding.
The exhibits in question were a letter dated October 18, 2007, and a statement
supplementing that letter dated January 15, 2008, both by Ann Young, a therapist
at High Plains who had treated Ms. Wilson since July 2004, prior to the ALJ’s
decision. The district court granted the motion and considered the documents, but
found they “justifie[d] neither reversal nor remand” for a number of reasons.
Evidence is material if “‘the Secretary’s decision might reasonably have
been different had the [new] evidence been before him when his decision was
rendered.’” Cagle v. Califano, 638 F.2d 219, 221 (10th Cir. 1981) (quoting King
v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)) (alteration in original). Here, it is
at least arguable that the exhibits are material as, in both, Ms. Young gives her
opinion that Ms. Wilson was disabled by her mental limitations during the
relevant time period. Next, while the exhibits themselves are technically new, in
that they were written in October 2007 and January 2008, the evidence in the
exhibits is considered derivative evidence to the extent that Ms. Young’s
conclusions were based solely on evidence already in the administrative record.
See Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997).
Ms. Wilson argues, however, that the therapy with Ms. Young that occurred
after the ALJ’s hearing led to a greater understanding of Ms. Wilson’s condition
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and to Ms. Young’s subsequent disability conclusion. Consequently, we must
consider whether there was good cause for the failure to present Ms. Young’s
disability opinion during the agency proceedings.
Although the district court did not base its denial on failure to show good
cause, that does not prevent this court from doing so if we conclude, as we do,
that it would have been an abuse of discretion for the district court to have
granted a remand in this case. See Ashby v. McKenna, 331 F.3d 1148, 1151
(10th Cir. 2003) (holding that “with respect to a matter committed to the district
court’s discretion, we cannot invoke an alternative basis to affirm unless we can
say as a matter of law that it would have been an abuse of discretion for the trial
court to rule otherwise” (quotation omitted)).
Here, the ALJ’s decision was handed down in October 2005. The Appeals
Council denied review at the end of March 2007. Although the letter, addressed
to “To Whom It May Concern,” and the statement, drafted by Ms. Wilson’s
counsel, were clearly prepared with Ms. Wilson’s social security claim in mind,
the only reason given for a failure to obtain and present such evidence sooner was
that “[s]ubsequent treatment and her most recent period of abstinence from drug
abuse has greatly increased [the mental health center’s] understanding of
Ms. Wilson.” Admin. R., Vol. III at 995. But there is nothing to support this
statement.
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Why did Ms. Wilson’s “most recent period of abstinence,” which started a
week before the hearing before the ALJ, “greatly increase” the understanding of
Ms. Wilson’s mental condition during the period of alleged disability, when her
earlier period of abstinence evidently did not? The last High Plains’ medical
records in the administrative record run from October 2003 through January 2004.
At that time, according to Ms. Wilson’s hearing testimony, she had not used drugs
since April 2001 and did not relapse until December 2004. Although the ALJ
pointed out that she had been discharged from treatment by one of her doctors
because of suspected drug use in October 2002, that would still mean that she had
been sober for a year before her late 2003-through-early 2004 round of treatment
at High Plains. Further, even if there was some treatment breakthrough after
Ms. Wilson regained sobriety in August 2005, why was that breakthrough not
related to the Appeals Council? It denied review in March 2007 and, according to
Ms. Young, she had been treating Ms. Wilson for almost three years at that point.
“[W]hen the claimant is represented by counsel at the administrative
hearing, the ALJ should ordinarily be entitled to rely on the claimant’s counsel to
structure and present claimant’s case in a way that the claimant’s claims are
adequately explored.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).
Allowing a claimant to hold opinion evidence as to her limitations to present to
the district court in the first instance would seriously undermine the regularity of
the agency process and is not allowed. See Bradley v. Califano, 573 F.2d 28, 30
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(10th Cir. 1978) (“‘Good cause’ is more than a desire to relitigate the same
issues.”). As Ms. Wilson failed to show why she could not have obtained and
submitted Ms. Young’s opinions to the ALJ or, at the least, the Appeals Council,
she failed to show good cause for a remand. See Cummings v. Sullivan, 950 F.2d
492, 500 (7th Cir. 1991) (stating that § 405(g) “require[s] good cause for a failure
to submit new evidence to the ALJ and the Appeals Council”).
VI.
The judgment of the district court is AFFIRMED.
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