Orso v. Colvin ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROBERT ORSO,
Plaintiff - Appellant,
v. No. 15-7077
(D.C. No. 6:14-CV-00408-FHS-KEW)
CAROLYN W. COLVIN, Acting (E.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Robert Orso appeals from the district court’s judgment affirming the denial of
his application 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.
I. Background
Mr. Orso sought benefits due to his major depression disorder, post-traumatic
stress disorder, bipolar disorder, paranoia, anxiety, memory problems, congestive
*
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 This order and judgment is not binding precedent,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.
heart failure, chronic obstructive pulmonary disease, and heart attacks. After his
application was denied initially and on reconsideration, he received a video hearing
before an administrative law judge (“ALJ”), at which Mr. Orso and a vocational
expert (“VE”) testified.
The ALJ found at step two of the five-step evaluation process used to assess
social security claims, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007), that
Mr. Orso had five severe impairments: “personality disorder, bipolar disorder,
coronary artery disease, hypertension, and generalized anxiety,” Aplt. App., Vol. 1 at
30. At step three of the evaluation process, the ALJ applied the special technique for
evaluating the severity of mental impairments by rating Mr. Orso’s level of
impairment in four functional areas. See 20 C.F.R. §§ 404.1520a, 416.920a
(describing special technique). The ALJ determined Mr. Orso had no extreme or
marked limitations but did have moderate difficulties in both the areas of social
functioning and of concentration, persistence, and pace; a mild restriction in
activities of daily living; and no episodes of decompensation.
Based on those determinations and the other evidence in the record, the ALJ
found that Mr. Orso had the residual functional capacity (“RFC”) “to perform
medium work . . . except limited to simple tasks with some detail and occasional
contact with coworkers, supervisors and the general public.” Aplt. App., Vol. 1 at
32. The ALJ then determined Mr. Orso was not disabled at steps four and five of the
evaluation process because he could perform his past relevant work as a dry cleaner
helper and there were also other jobs in the national economy he was able to perform
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such as press machine operator and janitor. In making these findings, the ALJ relied
in part on the testimony of the VE, who answered the ALJ’s hypothetical questions
about the types of jobs Mr. Orso could perform.
The Appeals Council denied review, and the district court affirmed. On
appeal, Mr. Orso argues the RFC is not supported by substantial evidence because it
fails to account for his anxiety and is not expressed in terms of work-related
functions. He also argues the ALJ erred in assessing his credibility.
II. Analysis
We review de novo the district court’s ruling in a social security case and
“independently determine whether the ALJ’s decision is free from legal error and
supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (internal quotation marks omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks
omitted). “In reviewing the ALJ’s decision, we neither reweigh the evidence nor
substitute our judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201
(10th Cir. 2015) (internal quotation marks omitted).
A. RFC Assessment
Mr. Orso argues that the RFC does not include appropriate limitations to
account for his anxiety, and that the hypothetical questions posed to the VE were
erroneous. However, the limitations incorporated into Mr. Orso’s RFC assessment
directly address the areas in which the ALJ found he had moderate difficulties. His
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moderate difficulty with social functioning is encompassed by the limitation of
“occasional contact with coworkers, supervisors and the general public.” Aplt. App.,
Vol. 1 at 32. His moderate difficulty with concentration, persistence, and pace is
encompassed by the limitation of work involving “simple tasks with some detail.”
Id. Moreover, an “ALJ’s finding of a moderate limitation in concentration,
persistence, or pace at step three does not necessarily translate to a work-related
functional limitation for the purposes of the RFC assessment.” Vigil, 805 F.3d at
1203.
Mr. Orso’s contention that his RFC is not expressed in work-related functions
lacks merit. He fails to explain specifically what additional limitations were needed
based on his anxiety or any other impairment. To the extent he argues that the RFC
should have included limitations to account “for the reality of anxiety attacks
occurring on the job,” Aplt. Opening Br. at 9, this argument is misplaced given the
absence of any evidence that Mr. Orso actually suffered from anxiety attacks. He did
not mention anxiety attacks at all in the paperwork he submitted to the agency or at
his hearing before the ALJ. He points to no evidence that he ever had such an attack
or even that he received a diagnosis that he was likely to suffer from such an attack.
Indeed, at least one medical report in the record strongly suggests his anxiety was not
a significant issue: “The anxiety remains stable. The patient denies any panic
episodes, loss of concentration, or loss of coping ability. No complications noted
from the medication presently being used.” Aplt. App., Vol. 2 at 311.
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“The burden to prove disability in a social security case is on the claimant, and
to meet this burden, the claimant must furnish medical and other evidence of the
existence of the disability.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir.
2004). Not only does Mr. Orso fail to make any showing that he actually suffered
from anxiety attacks, he also makes no showing or argument as to how the RFC
limitations would need to be changed to address symptoms stemming from his
anxiety or any of his other impairments.
Mr. Orso’s contention that the ALJ’s hypothetical questions to the VE were
improper is unpersuasive. The hypothetical questions were appropriately based on
the RFC assessment, which we have already concluded was not erroneous. Although
Mr. Orso seems to argue that the limitations the ALJ propounded to the VE were
inadequate to address his impairments found to be moderate by the ALJ, he fails to
describe any functions he could not perform which would preclude him from the jobs
identified by the VE. After the VE summarized four jobs Mr. Orso previously held,
the ALJ’s first hypothetical question asked her to consider an individual who had
performed that past work and could perform medium work but would be “limited to
simple tasks with some detail [and] to just occasional contact with co-workers and
supervisors.” Aplt. App., Vol. 1 at 58. The VE responded that the individual would
be able to perform past work as a dry cleaner helper. The ALJ’s second hypothetical
question asked the VE to assume all of the same limitations in the first hypothetical,
adding that the individual would be able to have “only occasional contact with the
general public.” Id. The VE responded that the individual would be able to work as
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a dry cleaner helper, press machine operator, or janitor. Mr. Orso offers no
explanation as to why an individual with only moderate difficulties in social
functioning and concentration, persistence, and pace would be precluded from
performing these jobs. As discussed above, Mr. Orso presented no evidence that he
suffers from anxiety attacks. Consequently, his argument that a person suffering
from such attacks would be precluded from performing these jobs is unavailing.
Mr. Orso’s citation to unpublished cases and cases from other jurisdictions is
unpersuasive. For the reasons given above, we conclude the RFC is supported by
substantial evidence in the record and find no error.
B. Credibility Determination
The ALJ found Mr. Orso’s statements about the severity of his symptoms only
partially credible, stating:
After careful consideration of the evidence, the undersigned finds that
[Mr. Orso’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [his] statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
decision.
Aplt. App., Vol. 1 at 33. Mr. Orso argues that the ALJ erred in how it assessed his
credibility. We disagree.
“[An] ALJ’s credibility findings warrant particular deference.” White v.
Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). Although the portion the ALJ’s
decision cited above relies on boilerplate language, “use of such boilerplate is
problematic only when it appears in the absence of a more thorough analysis.”
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Keyes-Zachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012) (internal quotation
marks omitted). “[S]o long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, he need not make a formalistic factor-by-factor
recitation of the evidence.” Id. at 1167 (internal quotation marks omitted).
Here, the ALJ evaluated Mr. Orso’s claims of disabling limitations in the
context of the entire record, noting his “wide range of activities of daily living, his
relatively conservative medical treatment with outpatient counseling and medication,
his mild medical signs of physical limitations, his moderate medical signs of mental
limitations, and the four opinions of the State agency medical consultants.” Aplt.
App., Vol. 1 at 34-35. At the hearing, the ALJ asked Mr. Orso to explain the primary
reason he was unable to work full time. He responded that he had trouble “[d]ealing
with people” and “fitting into the cultures of the jobs that [he’d] had.” Id. at 47. He
also testified that he had problems with losing his temper too easily and “[n]ot
smiling and being bubbly.” Id. at 48. We conclude there is sufficient evidence in the
record to support the ALJ’s determination that Mr. Orso overstated the limiting
effects of his symptoms, and “we neither reweigh the evidence nor substitute our
judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991).
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III. Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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