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Miller v. Barnhart , 175 F. App'x 952 ( 2006 )


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  •                                                                             F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    April 7, 2006
    FOR THE TENTH CIRCUIT                        Elisabeth A. Shumaker
    Clerk of Court
    DONNA L. MILLER,
    Plaintiff-Appellant,
    v.                                                    No. 05-6248
    (D.C. No. CIV-04-906-L)
    JO ANNE B. BARNHART,                                  (W.D. Okla.)
    Commissioner of Social Security
    Administration,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before LUCERO, EBEL, and MURPHY, Circuit Judges.
    Donna L. Miller appeals from an order affirming the Commissioner’s
    decision that she is not entitled to social security disability insurance benefits.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. The court generally disfavors the citation of orders and
    judgments; nevertheless, an order and judgment may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    We have jurisdiction under 
    42 U.S.C. § 405
    (g) and 
    28 U.S.C. § 1291
    , and we affirm.
    Background
    The lengthy history of Ms. Miller’s disability claim begins with her October
    24, 1996 application, in which she alleged disability since July 1, 1993. Ms.
    Miller, whose insured status expired September 30, 1995, listed her disabling
    condition as “nervous breakdown (1988-89).” Aplt. App. at 60. Accordingly,
    the evidence relevant to her claim pertains to her mental impairment after the
    alleged onset date and before the expiration of her insured status. See Henrie v.
    U.S. Dep’t of Health & Human Serv., 
    13 F.3d 359
    , 360 (10th Cir. 1993).
    Ms. Miller’s medical records indicate that she was hospitalized from
    February 7 to March 15, 1989, for a single episode of major depression with
    psychotic features, apparently precipitated by marital and family-related stressors.
    She was discharged in improved condition with instructions to continue her
    psychiatric care and take her medication. Ms. Miller did not return to her
    previous job as a dishwasher in a restaurant, but she worked from July to
    September 1990 in a nursing home and, in 1993, was a self-employed cattle
    salesperson. From her 1989 discharge to her 1996 disability application,
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    Ms. Miller received medical care for various physical problems, but was not seen
    again by a mental-health provider. 1
    In her social security case, an Administrative Law Judge (ALJ) held a
    hearing on May 7, 1998. A psychiatrist testified that the lack of “anything
    ongoing, recent” made an evaluation difficult and that she could determine
    whether Ms. Miller met a listing more objectively if the Commissioner ordered
    psychological testing. Aplt. App. at 215-16. On August 24, 1998, a psychologist
    evaluated Ms. Miller at the request of the Commissioner. The psychologist’s
    report shows a diagnosis of recurrent major depression, with possible psychotic
    features; chronic pain syndrome; and anxiety disorder, primarily represented by
    social phobia. The psychologist also completed a mental residual functional
    capacity (RFC) assessment form, noting several moderate and marked limitations
    in her ability to perform work-related activities. Neither the report nor the RFC
    assessment indicated a continuity between the 1989 psychotic break and
    Ms. Miller’s condition on the date of the evaluation.
    Shortly afterwards, the ALJ denied Ms. Miller’s application for benefits.
    Relying heavily on the psychologist’s report of the consultative examination, the
    1
    On appeal, Ms. Miller emphasizes the record of an emergency room visit
    for abdominal pain in June 1996 contains a “diagnostic impression of “chest pain,
    poss[ible] anxiety.” Aplt. App. at 133. This notation does not constitute a
    linkage between her episode of depression in 1989 and her later claim of
    a continuing mental problem.
    -3-
    ALJ found that Ms. Miller had a severe depressive and anxiety disorder, but that
    she had the RFC to perform the physical and mental demands of her past relevant
    work as a dishwasher. The Commissioner, however, had not provided the report
    to Ms. Miller. Upon judicial review, the district court reversed the denial of
    benefits, holding that Ms. Miller’s due process rights were violated by the
    Commissioner’s failure to give her notice of the post-hearing report or a
    meaningful opportunity to rebut this evidence.
    A second ALJ then held a hearing on remand. Douglas Brady, a clinical
    consultative psychologist, testified that a fair inference from the medical record
    was that Ms. Miller needed intensive treatment in 1997. He also commented on
    the lack of records of psychological or psychiatric treatment during the time
    period relevant to her claim. Ms. Miller testified about her condition from 1997
    through the date of the hearing.
    In a decision dated July 26, 2002, the second ALJ found that Ms. Miller
    “had a mental difficulty that did significantly restrict her ability to do basic work
    activities,” that she had the RFC for jobs with low to moderate stress, and that her
    past relevant work as a dishwasher was within this RFC. Id. at 269. Based on his
    findings, the ALJ concluded at step two of the sequential evaluation process that
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    Ms. Miller had a significant impairment, but denied benefits at step four because
    she could perform her past relevant work. 2
    Ms. Miller appealed the denial and, in 2003, the Appeals Council
    determined that the second ALJ’s decision was unsupported and insufficient.
    It therefore remanded the case, with specific directions to the ALJ to develop
    the record on remand by: (1) updating the record with reports from health care
    providers; (2) preparing a “new, longitudinal” RFC determination; (3) holding a
    supplemental hearing, with testimony from a vocational expert; (4) reconsidering
    claimant’s testimony; and (5) taking action necessary to complete the
    administrative record before issuing a new decision. Id. at 309.
    2
    Step one [of the process] requires a claimant to establish she is not
    engaged in substantial gainful activity. Step two requires the
    claimant to establish she has a medically severe impairment or
    combination of impairments. Step three asks whether any medically
    severe impairment, alone or in combination with other impairments,
    is equivalent to any of a number of listed impairments so severe as to
    preclude substantial gainful employment. If listed, the impairment is
    conclusively presumed disabling. If unlisted, the claimant must
    establish at step four that her impairment prevents her from
    performing work she has previously performed. If the claimant is not
    considered disabled at step three, but has satisfied her burden of
    establishing a prima facie case of disability under steps one, two, and
    four, the burden shifts to the Commissioner to show the claimant has
    the residual functional capacity (RFC) to perform other work in the
    national economy in view of her age, education, and work
    experience.
    Fischer-Ross v. Barnhart, 
    431 F.3d 729
    , 731 (10th Cir. 2005) (internal quotation
    marks and citations omitted).
    -5-
    A third ALJ was assigned to the case. He opened a hearing, informing
    claimant he was not bound by any prior decision in the case. The transcript shows
    that both the ALJ and Ms. Miller’s attorney were focused on extending
    Ms. Miller’s period of insurance eligibility and exploring the feasibility of
    Supplemental Security Income benefits. Concerning the medical records, the ALJ
    noted that the record didn’t “have a lot of medical evidence up until the date last
    insured” and inquired if there would “be substantial medical evidence . . . from
    ‘89 up to ‘94.” Aplt. App. at 497-98. Ms. Miller’s attorney responded that there
    was “a gap from – ‘89 forward. . . . That’s basically when her medical drops off
    the chart.” Id. at 497. He also stated that his client “understands the problems.
    That’s where we’re stuck. We go around in this case, around and around.” Id.
    at 498. The attorney did not suggest that any additional evidence would be
    appropriate. A vocational expert was present, but after holding the discussion
    with Ms. Miller’s attorney, the ALJ closed the hearing without calling for
    vocational testimony.
    The ALJ continued the proceedings for sixty days. No additional evidence
    relevant to Ms. Miller’s mental condition was produced after the hearing.
    Ms. Miller’s attorney submitted a letter to the ALJ which stated: “Quite frankly,
    I have nothing further to offer on this claim and have so explained this to the
    claimant. As you can see, she is also at her end and simply requests that a
    -6-
    decision from your office be issued.” Id. at 335. The ALJ then issued the
    decision which is the subject of this appeal.
    In making his decision, the third ALJ reviewed essentially the same record
    available to the second ALJ. At step two of the evaluation process, the ALJ
    acknowledged that the record indicated that Ms. Miller had a severe mental
    impairment in 1989 and also at the time of her 1998 examination. He concluded,
    however, that there was no evidence concerning an impairment in 1995. On
    November 26, 2003, the ALJ denied Ms. Miller’s application on the ground that
    she was not significantly limited in her ability to perform basic work-related
    activities at the relevant time and therefore not severely impaired.
    On administrative appeal, the Appeals Council found that “the
    Administrative Law Judge complied with the remand order” and declined to
    assume jurisdiction. Id. at 235. The district court affirmed the Commissioner’s
    decision and this appeal followed.
    Legal Discussion
    Compliance with remand order
    Ms. Miller’s primary argument on appeal is that the ALJ’s actions were
    inconsistent with the Appeals Council remand order. Ms. Miller does not assert
    that the ALJ’s de novo sequential evaluation caused surprise, confusion, or
    prejudice. And she does not describe evidence that she would have presented if
    -7-
    she had been given formal, explicit notice that the ALJ could revisit the earlier
    step-two determination. Instead, she attempts to make a legal argument by
    claiming that (1) in light of prior proceedings, the ALJ was precluded from
    making a step-two determination that she did not have a severe impairment; and
    (2) in accordance with the remand order, the ALJ should have obtained additional
    testimony from medical and vocational experts and conducted an analysis of the
    previous testimony from medical experts.
    Social Security regulations provide that, in the event the Appeals Council
    orders a remand, the ALJ “shall take any action that is ordered by the Appeals
    Council and may take any additional action that is not inconsistent with the
    Appeals Council’s remand order.” 
    20 C.F.R. § 404.977
    (b). Preclusion principles,
    however, do not “bind the ALJ to his earlier decision. To hold otherwise would
    discourage administrative law judges from reviewing the record on remand,
    checking initial findings of fact, and making corrections, if appropriate.”
    Campbell v. Bowen, 
    822 F.2d 1518
    , 1522 (10th Cir. 1987). This court has
    “decline[d] to constrain the ALJ in a manner not mandated by the regulations.”
    
    Id.
     See also Hamlin v. Barnhart, 
    365 F.3d 1208
    , 1224 (10th Cir. 2004) (stating
    that “[i]t was certainly within the ALJ’s province, upon reexamining [claimant’s]
    record [after Appeals Council remand], to revise his RFC category”); Houston v.
    Sullivan, 
    895 F.2d 1012
    , 1015 (5th Cir. 1989) (“Once the case was remanded to
    -8-
    the ALJ to gather more information about the extent of [claimant’s] disability, the
    ALJ was free to reevaluate the facts.”). 3
    Ms. Miller was advised of this rule at her hearing, when the ALJ announced
    that he was not bound by a prior decision. She was also warned that the ALJ
    considered the medical evidence lacking. Rather than making an effort to
    produce additional evidence or suggest a cure for the obvious gap in the record,
    Ms. Miller’s attorney simply conceded that the absence of evidence was
    problematic. On the facts of this case, the ALJ’s change in the step two
    determination, standing alone, cannot constitute error.
    Ms. Miller also argues that the order denying benefits should be reversed
    because the ALJ’s actions were inconsistent with the Appeals Council remand
    order. Specifically, she asserts that the ALJ disregarded instructions to obtain
    additional testimony from medical and vocational experts. The order, however,
    did not address the second ALJ’s step-two findings. In context, the instructions
    3
    Claimant’s cited authority does not detract from the rule this court
    established in Campbell. The cases relied upon by Ms. Miller generally involve a
    remand from a court, not an administration agency. They discuss and apply the
    law of the case doctrine, which requires the administrative agency on remand to
    conform its further proceedings to the judicial decision. Brachtel v. Apfel,
    
    132 F.3d 417
    , 420 (8th Cir. 1997); Ruiz v. Apfel, 
    24 F. Supp. 2d 1045
    , 1050
    (C.D. Cal. 1998); Richardson v. Apfel, 
    9 F. Supp. 2d 666
    , 673 (N.D. Tex. 1998);
    Geracitano v. Callahan, 
    979 F. Supp. 952
    , 957 (W.D.N.Y. 1997). See also
    Schonewolf v. Callahan, 
    972 F. Supp. 277
    , 289 (D.N.J. 1997) (noting the ALJ’s
    failure to follow the Appeals Council remand order, but independently reviewing
    the adequacy of the ALJ’s findings).
    -9-
    were designed to correct “errors of law affect[ing] the ALJ’s residual functional
    capacity findings,” made at step four. Aplt. App. at 307. In response to
    Ms. Miller’s final administrative appeal, the Appeals Council found that the third
    ALJ complied with its remand order. Under these circumstances, it is appropriate
    to examine the Commissioner’s final decision under our usual standards, rather
    than focusing on conformance with the particular terms of the remand order.
    Cf. 
    42 U.S.C. § 405
    (g) (stating that this court is limited to review of the
    Commissioner’s final decision); 
    20 C.F.R. § 404.955
    (a) (stating that when the
    Appeals Council grants a claimant’s request for review, the ALJ’s decision does
    not become final).
    Substantial evidence and conformity with legal standards
    This court reviews 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. Watkins v. Barnhart, 
    350 F.3d 1297
    ,
    1299 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a
    reasonable mind might accept as adequate to support a conclusion.” Doyal v.
    Barnhart, 
    331 F.3d 758
    , 760 (10th Cir. 2003) (quotation omitted). The court does
    not reweigh the evidence or substitute its judgment for that of the Commissioner.
    Decker v. Chater, 
    86 F.3d 953
    , 954 (10th Cir. 1996).
    -10-
    Ms. Miller challenges the Commissioner’s determination that she did not
    have a severe impairment at the relevant time. At step two, the claimant must
    prove that she has a medically severe impairment or combination of impairments
    that significantly limits her ability to do basic work activities. 
    20 C.F.R. §§ 404.1520
    (a)(4)(ii), 404.1521(a). “The step two severity determination is based
    on medical factors alone. . . .” Williamson v. Barnhart, 
    350 F.3d 1097
    , 1100
    (10th Cir. 2003). Although step two requires only a “de minimis” showing of
    impairment, a “claimant must show more than the mere presence of a condition or
    ailment.” Hinkle v. Apfel, 
    132 F.3d 1349
    , 1352 (10th Cir. 1997) (citations
    omitted). To meet this burden, a claimant must furnish medical and other
    evidence to support her claim that the impairment prevents her from engaging in
    substantial gainful activity. Bowen v. Yuckert, 
    482 U.S. 137
    , 145-46 & n.5
    (1987).
    Ms. Miller asserts that she carried her burden or, alternatively, she could
    have done so if the ALJ had developed the record with the testimony of an
    additional medical expert. The record contains no evidence that Ms. Miller was
    significantly impaired at the time her insured status expired. Thus we are brought
    to the question of whether the third ALJ’s failure to obtain retrospective medical
    testimony opinion amounts to a breach of his duty to develop the record.
    -11-
    The Commissioner “has broad latitude in ordering consultative
    examinations,” but “where there is a direct conflict in the medical evidence
    requiring resolution or where the medical evidence in the record is inconclusive,
    a consultative examination is often required for proper resolution of a disability
    claim.” Hawkins v. Chater , 
    113 F.3d 1162
    , 1166 (10th Cir. 1997) (citations
    omitted). A “retrospective medical assessment of a patient may be probative
    when based upon clinically acceptable diagnostic techniques.” Perez v. Chater,
    
    77 F.3d 41
    , 48 (2d Cir. 1996) (concerning a treating physician’s retrospective
    assessment).
    The record before the ALJ, however, does not indicate that this exercise
    would have revealed “any useful information or that the physicians were willing
    to undertake such assessments.” 
    Id.
     Though Ms. Miller argues that she was
    entitled to the testimony of a medical expert, she does not explain how a
    diagnosis undertaken ten years after the alleged onset date would have yielded
    any probative evidence. Further, she conceded that she had nothing further to
    offer and that the time had come to seek a decision. Cf. Hawkins, 
    113 F.3d at 1167-68
     (stating that, in the absence of a request from counsel, this court does
    not ordinarily “impose a duty on the ALJ to order a consultative examination
    unless the need for one is clearly established in the record”).
    -12-
    The ALJ already had Ms. Miller’s complete medical history, testimony
    from the two previous hearings, and the 1998 evaluation. Contrary to her
    contention, the ALJ adequately evaluated and discussed the record, including the
    1998 evaluation. Once he decided that the record did not demonstrate a severe
    impairment, the ALJ acted within the “broad latitude” afforded the agency in
    declining to obtain further medical testimony. See Hawkins, 
    113 F.3d at 1166
    .
    For similar reasons, the ALJ was not required to take the testimony of a
    vocational expert before making his step two determination.
    According Ms. Miller’s social security claim careful consideration at every
    administrative and judicial level has led to unfortunate delay. We now conclude,
    however, that the Commissioner’s final decision followed appropriate legal
    standards and was supported by substantial evidence. AFFIRMED.
    Entered for the Court
    Michael R. Murphy
    Circuit Judge
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