Brooks v. Commissioner, SSA ( 2023 )

Appellate Case: 22-3005 Document: 010110827976 Date Filed: 03/17/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 17, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
TROY BROOKS,
Plaintiff - Appellant,
v. No. 22-3005
(D.C. No. 6:20-CV-01370-SAC)
COMMISSIONER, SSA, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Troy Brooks appeals pro se from a district court order affirming the
Commissioner’s denial of his applications for disability insurance and supplemental
security income benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g), we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
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I. Background
Mr. Brooks filed an application in October 2010, alleging he was disabled
beginning in November 2008 when he was 20 years old. An administrative law judge
(ALJ) denied his application in July 2012. Following a remand by the district court
and two remands by the Appeals Council, an ALJ again denied Mr. Brooks’
application in December 2019.
Although Mr. Brooks had worked since the alleged onset date of his disability,
the ALJ found that his reported earnings did not rise to the level of substantial
gainful activity (SGA) for any year since that date. The ALJ found that Mr. Brooks
has three medically determinable mental impairments that qualify as severe:
attention deficit hyperactivity disorder, depression, and learning disorder/dyslexia.
The ALJ also considered his non-severe impairments, including post-traumatic stress
disorder, mild asthma, and sleep disorder.
According to the ALJ, Mr. Brooks has the residual functional capacity (RFC)
to perform a full range of work at all exertional levels but with the
following non-exertional limitations: limited to simple, routine repetitive
tasks that are limited to low stressors such as, slow-paced work, do not
require multi-tasking; any have [sic] changes in tasks performed or
locations of work; would work better in jobs that require non-verbal skills;
and is limited to occasional interaction with co-workers, supervisors, and
with the general public.
R., Vol. 1 at 736. As relevant to this appeal, in determining Mr. Brooks’ RFC, the
ALJ considered the medical opinions in the record, including a recent opinion by
Dr. Thomas Bartlett, a psychological consultative examiner. The ALJ afforded
Dr. Bartlett’s opinion “some weight,” id. at 743, and incorporated into Mr. Brooks’
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RFC some, but not all, of the limitations in the doctor’s opinion. A vocational expert
(VE) testified that an individual with Mr. Brooks’ RFC would be able to perform
unskilled occupations such as kitchen helper, industrial cleaner, and lab equipment
cleaner. Considering Mr. Brooks’ age, education, work experience, and RFC, the
ALJ concluded he had not been under a disability from the alleged onset date through
the date of the ALJ’s decision.
After the Appeals Council rejected Mr. Brooks’ exceptions to the ALJ’s
decision, he sought review in the district court, raising a single claim of error: that
the ALJ failed to resolve inconsistencies between the limitations in Dr. Bartlett’s
opinion and the mental RFC determination. More specifically, Mr. Brooks argued
the ALJ insufficiently explained why he rejected marked and moderate limitations
found by Dr. Bartlett.
The district court held that the ALJ had incorporated in the RFC Dr. Bartlett’s
moderate mental limitations by restricting Mr. Brooks to simple work that is routine
and repetitive, involves limited stressors, is slow-paced, does not require
multi-tasking, and involves few changes in tasks performed or work location. The
court further held the ALJ otherwise provided a sufficient explanation for giving only
some weight to Dr. Bartlett’s opinion. In particular, the ALJ had sufficiently
explained his rejection of a marked limitation in Mr. Brooks’ ability to respond
appropriately to usual work conditions and to changes in a routine work setting. The
district court therefore affirmed the Commissioner’s decision.
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II. Discussion
A. Standards of Review
“We review the Commissioner’s decision to determine whether the ALJ’s
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (internal quotation marks omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation marks omitted). Ultimately, the ALJ is entitled
to resolve evidentiary conflicts, and this court cannot reweigh the evidence.
See Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016); see also Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that “we may not displace the
agency’s choice between two fairly conflicting views” (brackets and internal
quotations marks omitted)).
Although Mr. Brooks was represented by counsel throughout the
administrative proceedings in this case and in the district court, he proceeds pro se in
this appeal.1 We therefore liberally construe his appellate briefs. See Cummings v.
1
Mr. Brooks represents that he has not written his own briefs. Rather, he has
relied on “pro bono help of family members, professionals from multiple areas and
other concerned individuals who have worked with [him]” because “his advocates
have not been able to find an attorney” to represent him in this appeal. Aplt. Opening
Br. at 1. Based on these representations, it does not appear that any attorney has
participated in the drafting of Mr. Brooks’ briefs. However, we caution that “any
ghostwriting of an otherwise pro se brief must be acknowledged by the signature of
the attorney involved.” Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001).
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Evans, 161 F.3d 610, 613 (10th Cir. 1998). “[B]ut we will not act as his advocate.”
James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
B. Scope of Review
“The scope of our review . . . is limited to the issues the claimant properly
preserves in the district court and adequately presents on appeal[.]” Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996). We will not address an issue the appellant failed
to raise in the district court unless he argues for plain-error review on appeal.
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). These
waiver principles apply despite Mr. Brooks’ pro se status on appeal. See United
States v. Edwards, 69 F.3d 419, 427 n.5 (10th Cir. 1995) (declining to address issue
raised in a pro se supplemental brief in part because it was not raised in the district
court).
On appeal, Mr. Brooks asserts numerous claims of error in the ALJ’s decision.
He argues the ALJ failed to correct errors the district court identified in remanding
his case to the agency after the first ALJ decision in 2012, did not meaningfully
consider all of the evidence in determining his RFC, made unreasonable inferences
about the nature and extent of his part-time work, ignored VE testimony that
supported his claim, and undervalued the entirety of the opinion evidence in the
record. He also contends the ALJ’s RFC determination is not supported by
substantial evidence.
As noted, however, Mr. Brooks chose to raise only one claim of error in the
district court, challenging the sufficiency of the ALJ’s explanation of the weight
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assigned to Dr. Bartlett’s opinion. See R., Vol. 2 at 28 (district court’s assessment
that “plaintiff’s sole challenge on appeal is with the ALJ’s consideration of the
consultative medical opinion of Dr. Bartlett”). Mr. Brooks argues our scope of
review should nonetheless include his other contentions because his “RFC is the
crucial issue in this case.” Aplt. Reply Br. at 7. But because he does not argue for
plain-error review of his forfeited issues, we limit our review to his arguments related
to the ALJ’s assessment of Dr. Bartlett’s opinion that we conclude he has adequately
presented based upon our liberal construction of his opening appeal brief.
C. Merits
“It is the ALJ’s duty to give consideration to all the medical opinions in the
record . . . [and to] discuss the weight he assigns to such opinions.” Keyes-Zachary,
695 F.3d at 1161. “[T]he ALJ must consider the factors listed in 20 C.F.R.
§ 404.1527(c) and give good reasons for the weight he assigns to the opinion.” Vigil
v. Colvin, 805 F.3d 1199, 1202 (10th Cir. 2015).2 An ALJ may not, without
explanation, adopt some of the restrictions in a medical opinion while rejecting
others. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Although an ALJ must “adequately evaluate and discuss the medical-source
evidence,” we will find his explanation is sufficient if we “can follow the
adjudicator’s reasoning in conducting our review, and can determine that correct
legal standards have been applied.” Keyes-Zachary, 695 F.3d at 1166. “The more
2
New agency rules for evaluating medical opinions, effective as of March 27,
2017, do not apply to Mr. Brooks’ disability claim, which was filed in 2010.
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comprehensive the ALJ’s explanation, the easier our task; but we cannot insist on
technical perfection” and we “exercise common sense.” Id.
1. Dr. Bartlett’s Opinion
Dr. Bartlett performed a psychological consultative examination of Mr. Brooks
in October 2019. The doctor completed a form on which he checked boxes indicating
his assessment of Mr. Brooks’ mental restrictions, which included moderate, marked,
and extreme limitations.3 As relevant to this appeal, Dr. Bartlett stated that
Mr. Brooks has a marked limitation in responding appropriately to usual work
situations and to changes in a routine work setting. Dr. Bartlett indicated this opinion
was based upon Mr. Brooks’ “negative attitude and poor social skills.” R., Vol. 1 at
1640. In the narrative portion of his opinion, Dr. Bartlett stated the following:
Mr. Brooks can complete simple instructions. He would not [b]e a good
candidate for interacting with the public due to his irritability. Coworkers
and supervisors might struggle with his irritable and negative attitude. . . .
His depression is likely to interfere with his ability to perform in a
consistent and ongoing manner in a full-time occupational setting.
Id. at 1644.
3
There is no dispute that the ALJ incorporated Dr. Bartlett’s extreme
limitations related to complex instructions and work-related decisions into
Mr. Brooks’ RFC by limiting him to simple, routine, repetitive tasks. And
Mr. Brooks does not repeat on appeal the argument he raised in the district court that
the ALJ failed to explain why his RFC omits the moderate limitations in
Dr. Bartlett’s opinion. As noted, the district court found that the RFC included those
limitations.
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2. The ALJ’s Assessment of Dr. Bartlett’s Opinion
The ALJ described Dr. Bartlett’s report regarding his 2019 psychological
consultative examination of Mr. Brooks as follows:
Consistent with the claimant’s report of a depressed mood, Dr. Bartlett
reported the claimant came across as depressed and irritable, impatient and
annoyed. Dr. Bartlett reported the claimant exhibited marginal eye contact
and social skills, but that they were not inappropriate. H[e] reported the
claimant exhibited difficulty with two tasks that demanded mental control.
In addition, . . . his general cognitive ability, as estimated by the WAIS-IV,
was in the borderline range (FSIQ=72). His general verbal comprehension
abilities were in the borderline range (VCI=76), and his general perceptual
reasoning abilities continued to be in the low average range (PRI=73).
Based on his examination and review, Dr. Bartlett diagnosed the claimant
with ADHD predominantly inattentive presentation and persistent
depressive disorder with anxious distress. Notably, Dr. Bartlett reported
the claimant displayed a wide variety of behaviors, but reported he had only
been treated with Zoloft and one other pill for about two years. He also
reported activities of daily living including the ability to drive, to perform
basic computer skills, to use a cell phone and social media, to manage his
own finances, and to perform all personal care tasks independently. In
addition, he reported helping to care for his two year old daughter. He also
reported hobbies and interests including playing basketball, watching his
daughter, and writing music. Moreover, he reported working in a barber
shop averaging about forty-hours per month.
R., Vol. 1 at 739-40 (citations and internal quotation marks omitted).
The ALJ concluded that the clinical findings in the record, including
Dr. Bartlett’s, supported some mental limitations, but that the level of Mr. Brooks’
treatment did not suggest that he has disabling limitations. In particular, Mr. Brooks
had not been prescribed ADHD medication, had not required inpatient care because
of a mental health crisis, and had not regularly exhibited significant symptoms such
as panic attacks, suicidal ideations with plan, or psychosis. The ALJ stated that
“[o]ne would expect objective abnormalities in at least some of these areas if the
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claimant were truly experiencing disabling anxiety or panic.” Id. at 740. The ALJ
elsewhere concluded that “the record also reveals that the treatment has been
generally successful in controlling [Mr. Brooks’] symptoms,” noting that “he testified
that his medications help with depression and anxiety.” Id. at 738.
The ALJ also concluded that Mr. Brooks’ descriptions of his daily activities
were “not limited to the extent one would expect to associate with disabling mental
impairments.” Id. at 737. The ALJ noted that Mr. Brooks can independently perform
personal care tasks, cook simple meals, shop, drive, do laundry, perform household
repairs, iron, and mow the yard. He also helped to care for his two-year-old
daughter. In addition, Mr. Brooks had completed barber school, which required 1500
hours of course work. Although he initially could not pass the written licensing tests,
with tutoring and accommodations he passed the examinations with high scores,
according to a CDI Report.4 Mr. Brooks had also maintained his barber license
during all but two years since 2013, and he worked part-time as a barber
approximately five hours per day, five days per week.
In considering the medical opinion evidence, the ALJ assessed Dr. Bartlett’s
opinion as follows:
Based on his evaluation and review of the record, Dr. Bartlett opined the
claimant had moderate limitations in understanding, remembering, carrying
out, and making simple judgment on simple instructions. He further opined
4
“The Cooperative Disability Investigations (CDI) program is a key anti-fraud
initiative that combats fraud within Social Security disability programs.” Off. of the
Inspector Gen., Soc. Sec. Admin., Cooperative Disability Investigations,
https://oig.ssa.gov/cdi/ (last visited Mar. 7, 2023).
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the claimant had marked limitations[5] in these areas for complex
instructions and work-related decisions. He also opined the claimant had
mostly moderate limitations in his ability to interact with others, but that he
had marked limitations in his ability to respond appropriately to usual work
situations and to changes in routine. Dr. Bartlett’s opinion is afforded some
weight. The undersigned notes that Dr. Bartlett[’s] opinion that the
claimant can complete simple instructions is generally consistent with the
objective evidence of record, including Dr. Bartlett’s own evaluation and
test results, which indicate the claimant is generally functioning in the
borderline range. His opinion, and the test results, are also consistent with
the claimant’s ability to perform a range of daily activities independently.
However, his marked limitation in responding to usual work situations and
to changes in work settings is not completely supported by the record. For
example, he based some of his limitations due to a “negative attitude”, not
clinical findings and also indicated that the testing may not have been fully
reliable. While there are reports by the claimant’s employer through
Dr. Suderman’s observations[6] that the claimant is routinely late for work
and has had some clients not return due to poor haircuts, the fact remains
that the claimant continues to work as a barber for approximately five hours
per day, five days per week. Moreover, the CDI Investigative report shows
that the claimant has been able to maintain his license, and perform skilled
artistic [hair] designs.
Id. at 743-44 (citations omitted).
5
Dr. Bartlett opined that Mr. Brooks had extreme, rather than marked,
limitations in these areas. But as noted, there is no dispute that Mr. Brooks’ RFC
accounted for Dr. Bartlett’s extreme limitations with regard to complex work.
6
Mr. Brooks had been assessed and counseled at Dyslexia and Learning
Differences Center by Linn Suderman and Robert Suderman. The ALJ gave little
weight to the Sudermans’ opinions, which found that Mr. Brooks had moderate,
marked, and extreme limitations in certain areas. The ALJ found the marked and
extreme limitations were not supported by the testing Mr. Brooks underwent, his
continued work activity, and his activities of daily living. The ALJ added, “Notably,
these opinions are primarily based on observations and inquiries to third parties,
including the claimant’s parents and employer, who are not acceptable medical
sources.” R., Vol. 1 at 742. The weight the ALJ assigned to the Sudermans’
opinions is not within the scope of this appeal.
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Thus, the ALJ provided the following reasons for giving only some weight to
Dr. Bartlett’s opinion and for rejecting the doctor’s marked limitation on Mr. Brooks’
ability to respond appropriately to usual work situations and to changes in the work
setting:
 Although Dr. Bartlett’s clinical findings supported some mental limitations,
the level of treatment Mr. Brooks underwent was not suggestive of him having
disabling limitations.
 Mr. Brooks’ range of daily activities were not consistent with disabling
limitations.
 Dr. Bartlett based some of his findings on Mr. Brooks’ negative attitude rather
than clinical findings and indicated that his testing may not have been fully
reliable.
 Although there was evidence that Mr. Brooks was routinely late for work at his
barbershop job and some clients reported he had given poor haircuts, he
continued to work as a barber for approximately five hours per day, five days
per week, he has been able to maintain his barber license, and he can perform
skilled artistic hair designs.
3. Mr. Brooks’ Contentions
a. Unclear Rationale
Mr. Brooks contends the ALJ’s reasons for giving Dr. Bartlett’s opinion only
some weight were so unclear that the district court instead had to provide a rationale.
He points to the district court’s statements that the ALJ’s decision “can be read” to
explain why the ALJ adopted some of Dr. Bartlett’s restrictions and rejected others.
R., Vol. 2 at 25-26. It is true that “[j]udicial review is limited to the reasons stated in
the ALJ’s decision” and that a court may not “suppl[y] possible reasons for rejecting
a physician’s opinion.” Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Be we are not persuaded that the ALJ’s decision lacks reasoning or that the district
court supplied a post hoc rationale. The ALJ cited several reasons for rejecting
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Dr. Bartlett’s marked limitation in responding to usual work situations and to
changes in work settings, and we, like the district court, can follow his reasoning in
conducting our review. See Keyes-Zachary, 695 F.3d at 1166. This is not a case
where the ALJ failed to explain how he weighed a medical opinion. Cf. Haga,
482 F.3d at 1208.
b. Negative Attitude and Marginal Effort in Testing
The ALJ gave Dr. Bartlett’s opinion only some weight, in part, because he
concluded the doctor had based some of his findings on Mr. Brooks’ negative attitude
rather than clinical findings, and because the doctor questioned the accuracy of his
testing on the ground that Mr. Brooks “does not appear to take the testing seriously
and his effort is marginal.” R., Vol. 1 at 1643. Mr. Brooks argues the evidence
shows he is unable to control his negative attitude, which “is the key reason he has
never been able to keep a real job.” Aplt. Opening Br. at 6. He asserts that his
“recurrent ‘negative attitude’ and ‘marginal effort’—whatever their cause may be—is
at the heart of why he is not able and has not been able to do full-time work.” Id.
at 11.
These assertions, which are not accompanied by citations to the medical
record, do not undermine the ALJ’s stated reasons. To the extent Mr. Brooks bases
these contentions on his own or his family’s assessment of his work-related
limitations, the ALJ considered his “assertions related to his inability to function due
to mental deficits,” but the ALJ did not give them great weight “because the medical
record does not support his allegations.” R., Vol. 1 at 741. The ALJ also considered
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his family members’ testimony, found it was “merely cumulative of the claimant’s
reports,” and gave it only “some weight . . . for the same reasons the claimant’s
reports are found only somewhat consistent with the record.” Id. at 744. These
findings by the ALJ are not within the scope of this appeal.
c. Part-time Employment as a Barber
While acknowledging his employer’s report that Mr. Brooks is routinely late
for work and sometimes provides poor haircuts, the ALJ rejected Dr. Bartlett’s
marked limitation on Mr. Brooks’ ability to respond appropriately to usual work
situations and to changes in the work setting, in part, based upon his continued work
as a barber for approximately five hours per day, five days per week and his ability to
maintain his barber license and perform skilled artistic haircut designs. Elsewhere in
the decision, the ALJ also noted that Mr. Brooks was able to complete barber school,
which required 1500 hours of course work. Mr. Brooks challenges the ALJ’s
reliance on his part-time work as a barber because he has done this work under
special circumstances where his employer is a family friend and his father pays some
or all of the rent for his barber chair. He also asserts that his barber job is intended to
provide him with “therapeutic socialization.” Aplt. Opening Br. at 5 (internal
quotation marks omitted). As the ALJ acknowledged, Mr. Brooks states that he has
not maintained a predictable work schedule at his barber job.
To the extent Mr. Brooks argues his part-time work as a barber is irrelevant to
the ALJ’s assessment of Dr. Bartlett’s opinion because it does not qualify as SGA, he
is mistaken. The regulations provide that, “[e]ven if the work you have done was not
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substantial gainful activity, it may show that you are able to do more work than you
actually did.” 20 C.F.R. §§ 404.1571 and 416.971. Mr. Brooks nonetheless argues
his part-time work as a barber fails to demonstrate his ability to sustain full-time
unskilled work. But the ALJ could conclude that Mr. Brooks’ ability to work
part-time in a skilled job requiring significant interaction with his supervisor and the
public, albeit with punctuality issues and some performance problems, was part of
the evidence showing that he can do more work than he actually did if he were
restricted to a simple, repetitive, slow-paced, low-stress job that does not require
multi-tasking and involves only occasional social interaction.
d. Unchallenged Reasons
The ALJ also found that Mr. Brooks’ level of treatment and his activities of
daily living were not consistent with disabling limitations. Mr. Brooks does not
acknowledge either of these reasons for rejecting Dr. Bartlett’s marked limitation on
his ability to respond appropriately to usual work situations and to changes in the
work setting—a limitation he says would have resulted in a finding of disability.
Thus, to the extent Mr. Brooks argues the ALJ’s rejection of that limitation lacks a
substantial-evidence basis, he fails to argue or demonstrate that these two
unchallenged reasons do not satisfy that standard.
As Mr. Brooks recognizes, the record contains conflicting evidence regarding
the extent of his work-related limitations. See Aplt. Opening Br. at 1 (stating “the
experts who have evaluated him give contradictory causes and assessments of his
condition”). “The ALJ was entitled to resolve such evidentiary conflicts and did so.”
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Allman, 813 F.3d at 1333. The ALJ appropriately gave Dr. Bartlett’s opinion only
some weight. “Concluding otherwise would require us to reweigh the evidence, a
task we may not perform.” Id.III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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