Stokes v. Astrue , 274 F. App'x 675 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 18, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT
Clerk of Court
MARY D. STOKES,
Plaintiff-Appellant,
v. No. 07-5046
(D.C. No. 05-CV-539-FHM)
MICHAEL J. ASTRUE, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge and
TYMKOVICH, Circuit Judge.
Plaintiff-appellant Mary D. Stokes appeals from an order of the district
court affirming the Commissioner’s decision denying her application for Social
Security disability and Supplemental Security Income benefits. Ms. Stokes filed
for these benefits on May 16, 2003. She alleged disability since February 19,
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2003, based on osteoarthritis, rheumatoid arthritis, diabetes, back pain, and
depression. The agency denied her applications initially and on reconsideration.
On September 4, 2004, Ms. Stokes received a de novo hearing before an
administrative law judge (ALJ). The ALJ subsequently determined that
Ms. Stokes was not disabled.
The Commissioner is required to follow a five-step sequential
evaluation process to determine whether a claimant is disabled. The
claimant bears the burden of establishing a prima facie case of
disability at steps one through four. 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.
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 . . . 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) (citations and quotations
omitted).
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The ALJ found in Ms. Stokes’ favor at steps one and two. At step three he
found that Ms. Stokes’ impairments did not meet or equal a listed impairment but
he found at step four that Ms. Stokes’ residual functional capacity (RFC) would
not allow her to return to her past relevant work as a nurse’s aide, sewing machine
operator, or certified medical aide. The ALJ’s RFC finding was:
The claimant’s impairments limit her to a wide range of light
level work activity. Specifically, the claimant can lift and carry 20
pounds. She can stand and/or walk 6 hours in an 8-hour workday at
45 minute intervals and sit 6 hours in an 8-hour workday at 45
minute intervals. She can occasionally climb, bend, stoop, squat,
kneel, crouch, crawl, reach overhead, push and pull, and operate foot
controls. She is slightly limited in fingering, feeling[], and grasping.
She requires an environment of low light, low noise and must avoid
cold, damp, rough and uneven surfaces, unprotected heights, fast and
dangerous machinery and night driving. She requires simple,
repetitive, and routine work and is slightly limited in contact with
public, coworkers and supervisors.
Aplt. App., Vol. 2 at 27. Nevertheless, the ALJ found at step five that with this
RFC there were a significant number of other jobs Ms. Stokes could perform in
the national or regional economy. He therefore concluded Ms. Stokes was not
disabled within the meaning of the Social Security Act. The Appeals Council
denied review, making the ALJ’s decision the Commissioner’s final decision.
Ms. Stokes appeals. Her main arguments are that the ALJ erred at steps
two, three, and five of the evaluation process and that he failed to perform a
proper credibility determination. We have jurisdiction under 28 U.S.C. § 1291and 42 U.S.C. § 405(g). We review the Commissioner’s decision to determine
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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) (quotations omitted). Following such review, we AFFIRM.
I.
Ms. Stokes’ first point alleges the ALJ erred by failing to consider her pain
disorder at step two of the sequential evaluation process. “At step two, the
claimant must show that [she] has a medically severe impairment or combination
of impairments.” Lax, 489 F.3d at 1084 (quotation omitted). The ALJ found Ms.
Stokes had a medically severe impairment or combination of impairments, but did
not reference Ms. Stokes’ pain disorder when making that finding. That failure,
by itself, does not constitute reversible error, see Maziarz v. Sec’y of Health &
Human Servs., 837 F.2d 240, 244 (6th Cir. 1987), because once the ALJ finds the
claimant has a medically severe impairment or combination of impairments, he or
she is required to “consider the limiting effects of all [the claimant’s]
impairment(s), even those that are not severe, in determining [the claimant’s]
residual functional capacity.” 20 C.F.R. §§ 404.1545(e), 416.945(e) (emphasis
added).
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II.
Ms. Stokes claims the ALJ erred at step three as well.
At step three, the determination is made whether the impairment is
equivalent to one of a number of listed impairments that the
Commissioner acknowledges are so severe as to preclude substantial
gainful activity. If the impairment is listed and thus conclusively
presumed to be disabling, the claimant is entitled to benefits.
Lax, 489 F.3d at 1085 (citations, quotations, and brackets omitted).
Ms. Stokes claims the ALJ failed to utilize the “special technique” required
by the regulations when evaluating her mental impairments at this step.
Specifically, she argues the ALJ failed to make specific findings as to what rating
he was assigning to her functional limitations in the areas of activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of
decompensation. We agree error occurred.
The ALJ’s decision simply stated that he had “carefully compared
[Ms. Stokes’] signs, symptoms, and laboratory findings with the criteria specified
in all of the Listings of Impairments” and found that her impairments did not meet
the criteria for any listed impairment. Aplt. App., Vol. 2 at 22. This is deficient
when the claimant has mental impairments as well as physical impairments.
Under the regulations, when evaluating mental impairments, the agency must
follow a “special technique.” 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Under
this technique, the agency is required to rate the degree of a claimant’s functional
limitations caused by those impairments in the areas of “[a]ctivities of daily
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living; social functioning; concentration, persistence, or pace; and episodes of
decompensation.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ then
applies those ratings in determining whether the claimant’s mental impairments
are severe at step two and, if so, whether these severe impairments “meet[] or
[are] equivalent in severity to a listed mental disorder” at step three. Id. §§
404.1520a(d)(1-2), 416.920a(d)(1-2). At the ALJ hearing level, “[t]he decision
must include a specific finding as to the degree of limitation in each of [those]
functional areas.” Id. §§ 404.1520a(e)(2), 416.920a(e)(2).
The agency argues this error was harmless under our holding in Fischer-
Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005). In Fischer-Ross, as in this
case, the ALJ summarily found that none of the listed impairments were met at
step three. The court considered whether Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996) (holding that such a conclusory determination at step three was
“beyond meaningful judicial review”), “require[d] reversal where the ALJ’s
factually substantiated findings at steps four and five of the evaluation process
alleviate[d] any concern that [but for the error] a claimant might have been
adjudged disabled at step three.” Fischer-Ross, 431 F.3d at 730. The court held
that Clifton required no such outcome, holding: “harmless error analysis
‘nevertheless may be appropriate to supply a missing dispositive finding . . .
where, based on material the ALJ did at least consider (just not properly), we
could confidently say that no reasonable administrative factfinder, following the
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correct analysis, could have resolved the factual matter in any other way.’” Id. at
733-34 (quoting Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004))
(alteration in original).
In the present case, Ms. Stokes was diagnosed with three mental
impairments, anxiety, a depressive disorder, and a “[p]ain disorder associated
with both psychological factors and a general medical condition,” Aplt. App.,
Vol. 2 at 331. 1 At step three, these impairments are compared to the impairments
listed at sections 12.04 (Affective Disorders), 2 12.06 (Anxiety Related Disorders),
and 12.07 (Somatoform Disorders), 3 of 20 C.F.R., pt. 404, subpt. P, App. 1
(Listed Impairments). Under the facts of this case, in order for the ALJ to have
found that Ms. Stokes’ mental limitations met the required level of severity for
any of these listed limitations, the ALJ would have to have found that her
limitations resulted in at least two of the following:
1
Dr. John Hickman also diagnosed Ms. Stokes with a cognitive disorder not
otherwise specified, but stated it was probably a secondary effect of her
depression and pain. A cognitive disorder “is a clinically significant deficit in
cognition or memory that represents a significant change from a previous level of
functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 123 (4th ed. 1994) (DSM-IV).
2
An affective disorder is “[c]haracterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome. Mood refers to a
prolonged emotion that colors the whole psychic life; it generally involves either
depression or elation.” 20 C.F.R., pt. 404, subpt. P, App. 1, § 12.04.
3
A “pain disorder associated with both psychological factors and a general
medical condition” is a type of somatoform disorder. DSM-IV at 458-62.
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1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended
duration[.]
See Listed Impairments §§ 12.04(B); 12.06(B), and 12.07(B). 4 A “marked”
limitation
means more than moderate but less than extreme. A marked
limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree of
limitation is such as to interfere seriously with [a claimant’s] ability
to function independently, appropriately, effectively, and on a
sustained basis.
Id., § 12.00(C).
A reasonable administrative factfinder could have determined Ms. Stokes
had marked difficulties in maintaining concentration, persistence, or pace.
“Concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” Id., § 12.00(C)(3). The
ALJ’s opinion referenced the determination in the consultative mental status
examination that Ms. Stokes had marked limitations in the ability to understand
4
Under certain conditions, paragraph B would not have to be met for a
limitation to meet the required level of severity under sections 12.04 and 12.06 of
the Listed Impairments. See Listed Impairments §§ 12.04(C); 12.06(C).
Ms. Stokes does not argue those conditions were met in this case.
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and remember detailed instructions, the ability to carry out detailed instructions,
and the ability to sustain an ordinary routine without special supervision, and that
she had a moderate limitation in the ability to complete a normal workday and
workweek and to perform at a consistent pace without an unreasonable number
and length of rest periods. Further, in his RFC determination the ALJ limited
Ms. Stokes to “simple, repetitive, and routine work,” Aplt. App., Vol. 2 at 27.
Nevertheless, a reasonable factfinder could not have determined Ms. Stokes
had a marked restriction of activities of daily living (ADLs), marked difficulties
in maintaining social functioning, or repeated episodes of decompensation, each
of extended duration.
As to repeated episodes of decompensation:
Episodes of decompensation are exacerbations or temporary
increases in symptoms or signs accompanied by a loss of adaptive
functioning, as manifested by difficulties in performing activities of
daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.
Listed Impairments § 12.00(C)(4). “The term repeated episodes of
decompensation, each of extended duration in these listings means three episodes
within 1 year, or an average of once every 4 months, each lasting for at least 2
weeks.” Id. Ms. Stokes argues the evidence of her one or two previous suicide
attempts shows repeated episodes of decompensation. In his disability evaluation,
Dr. Hickman noted that Ms. Stokes reported two suicide attempts, Aplt. App.,
Vol. 2 at 328, that had occurred “a few years ago.” id., at 329. In her testimony
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before the ALJ, Ms. Stokes testified that she had previously tried to end her life
by overdosing on medication after being fired from her job. She did not specify
exactly how many attempts she had made, simply saying “I had taken . . . a bunch
of my pills.” Id. at 403. She testified that she thought the attempts occurred in
2001, which would be prior to the claimed date of disability, but she could not
remember the exact year. She presented no evidence of the type or quantity of
medications she took and, although she testified she saw a psychiatrist after the
attempts, she gave no specifics as to her treatment and provided no treatment
records. No reasonable factfinder could have found the criteria of repeated
episodes of decompensation to have been met from such cursory references to
previous suicide attempts.
As to marked difficulties in maintaining social functioning, we note that
“[s]ocial functioning refers to [a claimant’s] capacity to interact independently,
appropriately, effectively, and on a sustained basis with other individuals.”
Listed Impairments § 12.00(C)(2). Ms. Stokes argues her “social functioning is at
least markedly, if not extremely, limited.” Aplt. Opening Br. at 26. The ALJ
noted in his decision that Dr. Hickman’s mental status examination (MSE) found
only “3 levels of ‘marked’ functioning out of 20 and the rest were “moderate” or
not a significant limitation.” Aplt. App., Vol. 2 at 23. A review of the record
shows Dr. Hickman found no limitations in the “social interaction” section of the
MSE. Ms. Stokes does not specify what record evidence supports her claim that
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her social functioning is, at the least, markedly limited, and our independent
review has not revealed sufficient evidence to allow a reasonable factfinder to
determine that the criteria for such a finding were met.
Finally, as to whether a reasonable factfinder could find Ms. Stokes had
marked restrictions of ADLs, we note that “[a]ctivities of daily living include
adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for
[one’s] grooming and hygiene, using telephones and directories, and using a post
office.” Listed Impairments § 12.00(C)(1). The ALJ found “[a]t the hearing the
claimant testified that she is able to take care of her personal needs. She testified
that she can perform household chores and does the cooking. The claimant
testified that she is able to read, shop and watch television.” Aplt. App., Vol. 2 at
24.
Ms. Stokes argues:
her ADLs are markedly limited. The ALJ cited Claimant’s testimony
about being able to care for her personal needs, perform household
chores, cook, read, shop and watch television. He ignored that these
are minimal ADLs, which are not substantial evidence that a claimant
can work. He also ignored that the non-treating, non-examining,
reviewing experts of the State agency stated that her ADLs were
limited.
Aplt. Opening Br. at 25 (citations omitted).
As to Ms. Stokes’ first argument, it is true that evidence showing the ability
to perform minimal activities of daily living is not, by itself, substantial evidence
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a claimant can work. “The sporadic performance of household tasks or work does
not establish that a person is capable of engaging in substantial gainful activity.”
Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993). But the question at
issue at this point in the review is simply whether a reasonable factfinder could
conclude Ms. Stokes had marked restrictions of ADLs, not the overall question of
whether she is disabled.
As to Ms. Stokes’ second argument, we acknowledge that the “Consultant’s
Notes” section of a Psychiatric Review Technique (PRT) form in the record states
“[h]er ADL[]s are limited by physical issues.” Aplt. App., Vol. 2 at 148. But the
consultant did not offer an opinion on what level of limitation existed. That
section of the PRT form also states:
ADL[]s indicate she is able to meet her own personal needs,
sometimes, husband helps put on her shoes, she cooks several times a
week, she vacuums, family does laundry, her daughter does the
shopping for her, she reads, watches TV, her hobby is playing Bingo
weekly, she visits about three times a week, she drives + is not active
in groups.
Id. This recitation of her abilities is fairly consistent with Ms. Stokes’ hearing
testimony. At the hearing she testified she had no hobbies, she did not read
anymore because of concentration problems, she did the laundry and her husband
hung it on the clothesline for her, and she did the shopping but her daughter went
along to lift the heavy items.
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Consequently, while it is clear Ms. Stokes’ ADLs are somewhat limited by
her medical conditions, we conclude no reasonable factfinder could have found
Ms. Stokes had marked restrictions of her ADLs and, therefore, that the ALJ’s
failure to properly utilize the “special technique” at step three was harmless error.
III.
In her third point on appeal, Ms. Stokes claims the ALJ erred at step five of
the sequential evaluation. At step five, the Commissioner must “show that the
claimant retains sufficient [RFC] to perform work in the national economy, given
her age, education, and work experience.” Lax, 489 F.3d at 1084.
An individual shall be determined to be under a disability 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, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which
exists in significant numbers either in the region where such
individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
Ms. Stokes argues that a person with her RFC could not perform the jobs of
bench assembler, electrical assembler, clerical mailer, and assembler, which the
ALJ found were representative of a significant number of jobs that Ms. Stokes
could perform that were available in the national economy. Among other
limitations incorporated in the RFC, the ALJ found that Ms. Stokes “requires an
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environment of low light, low noise” and was limited to “simple, repetitive and
routine work.” Aplt. App., Vol. 2 at 27.
Ms. Stokes’ first argument is that the ALJ’s limitation to an environment of
low noise should be construed as a limitation to jobs with a Department of Labor
noise-intensity-level rating of two or less. Her second argument is that the ALJ’s
limitation to simple, repetitive, and routine work should be construed as a
limitation to jobs with a Department of Labor reasoning-level rating of one.
With regard to the ALJ’s limitation to low noise, we note the ALJ stated to
the vocational expert (VE) in presenting his hypothetical:
In limiting the low light and low noise, I’m not trying to restrict a
routine ordinary business, commercial, educational type noise or
light environment, but if she’s going to be outside in bright sunlight
all day flagging trucks by or on a foundry floor or working around
bright photo plugs, I want to restrict that type of work activity.
Id. at 412, Aplt. App., Vol. 1 at 57-58. The Department of Labor ranks noise
intensity as follows:
1 Very Quiet isolation booth for hearing test; deep sea
diving; forest trail
2 Quiet library; many private offices; funeral
reception; golf course; art museum
3 Moderate business office where typewriters are
used; department store; grocery store;
light traffic; fast food restaurant at
off-hours
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4 Loud can manufacturing department; large
earth-moving equipment; heavy
traffic
5 Very Loud rock concert - front row; jackhammer
in operation; rocket engine testing
area during test
U.S. Dep’t of Labor, Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles, App. D, D-2 (1993) (SCO). It appears
to us that the ALJ intended to preclude jobs with a noise intensity level of four or
five. The electrical assembler (DOT number 729.687-010) and clerical mailer
(DOT number 209.587-010) both have noise intensity levels of three. See SCO at
284, 347. But the bench assembler (DOT number 780.684-062) and
semiconductor assembler (DOT number 726.687-046) jobs have noise intensity
levels of four. 5 See SCO at 302, 308. We believe the ALJ’s reference to these
level-four jobs was harmless.
Harmless error is seldom used to supply a missing dispositive finding in a
situation such as this because this court must avoid “usurping the administrative
tribunal’s responsibility to find the fact” and must not “violate[]the general rule
5
The VE specifically provided the court with the DOT numbers for the jobs
he was considering. We have examined the jobs specified by those numbers. We
note, however, that the official titles for the jobs the VE described “electrical
assembler,” “clerical mailer,” “bench assembler,” and “semiconductor assembler”
are actually “assembler, electrical accessories I,” “addressor,” “fabricator, foam
rubber,” and “wafer breaker, semiconductors,” respectively. See 1 U.S. Dep’t of
Labor, Dictionary of Occupational Titles 180 (4th ed., rev. 1991); 2 U.S. Dep’t of
Labor, Dictionary of Occupational Titles 736, 744, 810 (4th ed., rev. 1991).
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against post hoc justification of administrative action.” Allen, 357 F.3d at 1145.
In Allen, we refused to find harmless error when the ALJ erroneously relied on
testimony that there were eight hundred appropriate jobs available statewide when
the record supported only a determination that one hundred appropriate jobs were
available statewide. We recognized in Allen, however, that harmless error “might
have been [appropriate] had the number of available jobs identified by the VE not
been one hundred but considerably greater.” Id. Further, as recognized in Allen,
we had determined in the previous case of Trimiar v. Sullivan, 966 F.2d 1326,
1330 (10th Cir. 1992), that an evidentiary showing of 650-900 statewide jobs was
not sufficient to show that work existed in significant numbers in the region
where the claimant lived as a matter of law, although we did affirm the ALJ’s
factual finding that significant numbers existed.
But the case at hand is different from both Allen and Trimiar. Here, the VE
testified that 6,000 electronics assembler jobs existed regionally and 72,000
existed nationally and that 5,000 clerical mailer jobs existed regionally and
80,000 nationally. Thus, even if we consider only these two jobs out of the four
considered by the ALJ, there were still 11,000 jobs available regionally and
152,000 jobs available nationally. 6 Here, we do not believe any reasonable
6
The VE testified he was “using Region Six of the Social Security
Administration’s regions.” Aplt. App., Vol. 2 at 410. We note that the Social
Security Administration is divided into ten different regions. Region six is also
referred to as the “Dallas Region” and serves the states of Arkansas, Louisiana,
(continued...)
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factfinder could have determined that suitable jobs did not exist in significant
numbers in either the region where Ms. Stokes lives or several regions of the
country.
Ms. Stokes’ second argument is that the ALJ’s limitation to simple,
repetitive and routine work should be construed as a limitation to jobs with a
reasoning-level rating of one. We disagree. All of the jobs considered by the
ALJ had a reasoning level rating of two. In Hackett v. Barnhart, we held that a
limitation “‘for simple and routine work tasks’” was inconsistent with the
demands of level-three reasoning but consistent with the demands of level-two
reasoning, 395 F.3d 1168, 1176 (10th Cir. 2005), which under the DOT means
that a claimant can “[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions[ and d]eal with standardized situations
with occasional or no variables in or from these situations encountered on the
job.” See 2 DOT, App. C, at 1011.
IV.
Ms. Stokes’ main argument in her final point is that the ALJ failed to
perform a proper credibility determination in part because he ignored her
6
(...continued)
New Mexico, Oklahoma, and Texas. See Dallas Region Home Page,
http://www.socialsecurity.gov/dallas/ (last visited April 4, 2008), and Office of
Disability Adjudication and Review, Dallas Region 6 Homepage,
http://www.socialsecurity.gov/appeals/r6/dallas.html (last visited April 4, 2008).
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somatoform disorder. She claims the following credibility determination was
erroneous:
The claimant has alleged pain and that she cannot work
because of these symptoms. The credible medical evidence,
however, does not establish an underlying medical condition so
severe as to be productive of limitations that would preclude all work
activity and the claimant’s testimony is found credible only to the
extent consistent with a residual functional capacity for a wide range
of light work.
Aplt. App., Vol. 2 at 27. Ms. Stokes claims that instead of properly determining
her credibility, the ALJ determined her RFC and then tailored this credibility
determination accordingly.
We initially note that this is not a case where the ALJ failed to give any
consideration to Ms. Stokes’ subjective complaints of pain. 7 The decision states:
[a]s to the claimant’s allegations of totally disabling pain, her
testimony was evaluated and compared with prior statements and
other evidence. It is the conclusion of the [ALJ] that the pain
7
When a claim of disabling pain has been made:
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.
Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995) (quotation omitted). Here,
objective physical and mental medical evidence showed pain-producing
impairments and that a “loose nexus” existed between the impairments and Ms.
Stokes’ subjective allegations of pain.
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experienced by the claimant is limiting but, when compared with the
total evidence, not severe enough to preclude all types of work.
Aplt. App., Vol. 2 at 23. Ms. Stokes challenges the determination that her claim
of disabling pain was not credible.
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial
evidence.” Kepler, 68 F.3d at 391 (quotation omitted). But “[i]t is
well-established that an ALJ’s findings with respect to a claimant’s credibility
should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Hardman v. Barnhart, 362 F.3d 676, 678-79
(10th Cir. 2004) (quotation omitted).
Ms. Stokes attacks the ALJ’s credibility determination on a number of
fronts. She disputes certain findings or statements the ALJ made in determining
her claim was not credible. These include: (1) her diabetes treatment was routine
and conservative in nature; (2) her back injury treatment was conservative; (3)
Ms. Stokes had not sought mental health treatment on her own, and (4) she quit
working because of her back pain, and not due to emotional problems.
She also claims the ALJ ignored certain pieces of favorable evidence from
her medical records in finding her claim of disabling pain non credible. These
include evidence that she demonstrated “absent ankle deep tendon reflexes,” Aplt.
Opening Br. at 37, numbness, “muscle weakness, an abnormal gait and toe
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walking, sacroiliac joint tenderness, muscle spasm, and decreased and painful
range of motion of the lumbar spine,” id., “bilateral arthritic changes in her
ankles,” id. at 38, and evidence that “following her surgery, Claimant developed
another bulging disc, was prescribed a back brace, and found to have arthritic
changes of her spine, as well as blood tests indicating rheumatoid arthritis,” id.
Finally, she claims the ALJ’s credibility determination was flawed because he
gave her no credit for her work history after her 1997 back surgery, in that a good
work history enhances credibility.
The only question this court must answer is whether the ALJ’s
determination that Ms. Stokes’ allegations of disabling pain were not credible was
closely and affirmatively linked to evidence that a reasonable mind might accept
as adequate to support that conclusion . As properly stated by the magistrate judge
in the district court: “The ALJ accurately summarized the record and explained
his reasons for discounting claimant’s pain allegations, including Plaintiff’s own
testimony about her activities, relatively moderate symptoms reflected in the
medical record, functional range of motion, and no functional limitations placed
on her activity by any treating physician.” Aplt. App., Vol. 1 at 59. A review of
the record shows the ALJ incorporated most of Ms. Stokes’ hearing testimony
regarding her limitations into his RFC finding. Although Ms. Stokes argues that
one of her treating physicians did, in fact, place a functional limitation on her
activity by way of an opinion that she could not work, this opinion, as will be
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discussed in detail below, was cursory, conclusory, and unsupported by the
record. Thus we see no reason to overturn the ALJ’s credibility determination in
this case.
Ms. Stokes also raises arguments in her last point separate from her
challenge to the ALJ’s credibility finding. Ms. Stokes claims that “[t]he ALJ
found Claimant’s ADLs compatible with light work. He never explained how he
reached this conclusion. He merely implied that she took care of her personal
needs, performed household chores, cooked, read, shopped and watched television
on a full time basis.” Aplt. Opening Br. at 40. This argument misrepresents the
content of the ALJ’s decision. The determination that Ms. Stokes could perform a
wide range of light level work activity was based on the ALJ’s RFC determination
which, in turn, was based on the evidence in the record, including Ms. Stokes’
own testimony regarding her limitations. The RFC determination was not based
solely on her ability to perform ADLs.
Ms. Stokes claims the ALJ’s RFC determination was flawed because “he
failed to include any limitations with regard to foot controls, and he
acknowledged only a ‘slight’ limitation of fingering, feeling, and grasping.” Aplt.
Opening Br. at 37. The ALJ’s decision properly described the physical
consultative examination as indicating that “the claimant’s feet and hands for
repetitive movement would be limited bilaterally.” Aplt. App., Vol. 2 at 23.
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Ms. Stokes argues that “[r]epetitive use implies more that ‘slight’ use.” Aplt.
Opening Br. at 37.
First, we note that the ALJ did not limit Ms. Stokes’ fingering, feeling, and
grasping to “slight use.” The RFC determination found Ms. Stokes could reach
overhead, push and pull, and operate foot controls “occasionally,” and that “[s]he
is slightly limited in fingering, feeling[], and grasping.” Aplt. App., Vol. 2 at 27.
Nevertheless, when the VE was asked whether the jobs he had found Ms. Stokes
could perform “require[d] constant or repetitive use of the hands,” he testified:
“Yes, frequent to constant.” Id. at 415. The physical consultative examination
simply stated that Ms. Stokes’ ability for repetitive grasping and fingering was
limited. The examination report noted she had functional range of motion in her
wrist and fingers but that she had tingling numbness and pain in her legs and
hands, “with findings consistent with peripheral neuropathy, probably the result
of her longstanding diabetes mellitus.” 8 Aplt. App., Vol. 2 at 338.
At the hearing Ms. Stokes was asked to describe the problems she was
having with her hands and wrists. The ALJ asked her if she was having any
problems with neuropathy in her hands and fingers. She testified she had
8
Peripheral neuropathies related to diabetes mellitus “can cause a bilaterally
symmetric hypesthesia [loss of sensitivity], hyperesthesia [hyper-sensitivity],
paresthesia [abnormal sensitivity–prickling, tickling, or tingling], loss of
temperature and vibratory sense, or causalgia [persistent severe burning pain].”
See Stedman’s Medical Dictionary 1212 (27th ed. 2000) (description of diabetic
neuropathy).
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arthritis, that sometimes when she got out of bed her hands were stiff and she
could not hold things, and that sometimes the condition wore off as the day
progressed. But she testified she had no neuropathy in her hands and fingers.
She testified she could pick dimes off a table with both hands, that she could not
change a light bulb over her head because she could not keep a hold on the light
bulb, but that she could comb and wash her hair, and she had no trouble operating
the steering wheel, gear selector, or turn signal when she drove. She also testified
she could lift an iron skillet or a gallon of milk, although she sometimes had to
use two hands for the skillet.
The ALJ, in a colloquy with the VE on the issue of Ms. Stokes’ slight
limitation on fingering, feeling, and grasping, stated “I’m not saying she can’t
work with her hands and fingers, but she shouldn’t be doing small, tedious things
with her hands and fingers. She could put her kid’s bicycle together maybe but
she might not be able to work with her kid’s erector set.” Aplt. App., Vol. 2 at
412. Considering Ms. Stokes’ own testimony that the problem she was
experiencing with her hands was stiffness from arthritis and the ALJ’s
explanation to the VE that he did not want her doing small, tedious things with
her hands and fingers, we hold that the RFC’s limitations that she only operate
foot controls “occasionally,” and that “[s]he is slightly limited in fingering,
feeling[], and grasping,” are supported by substantial evidence.
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Ms. Stokes also claims the ALJ failed to properly consider the medical
opinion of one of her treating physicians. That physician, Dr. Steve Sanders from
the Pawnee Indian Health Clinic, provided a one-sentence opinion stating “Mary
Stokes suffers from chronic low back [sic] and would not be able to work full
time on a regular basis.” Id. at 308. Ms. Stokes’ attorney informed the ALJ that
the clinic was not cooperative with such requests, that “[w]e get what we can,”
and that he had “to dance a little trick” to get anything at all. Aplt. App., Vol. 2
at 379. In his decision, the ALJ found that Dr. Sanders’ opinion could not “be
given controlling weight because it is brief and conclusory with nothing in the
way of clinical findings to support his conclusion.” Id. at 25.
Citing Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290
(10th Cir. 1995), Ms. Stokes argues the ALJ should have gone on to determine
what weight he was giving the opinion. No error was made because this is not a
medical opinion. The “opinion” merely opines that Ms. Stokes suffers from
“chronic low back.” Aplt. App., Vol. 2 at 308. It was undisputed that Ms. Stokes
has some degree of back injury and pain. The doctor’s subsequent legal
conclusion that this “chronic low back” rendered Ms. Stokes totally disabled is a
determination reserved for the Commissioner. 20 CFR §§ 404.1527(e),
416.927(e).
Ms. Stokes also argues the ALJ had a duty to re-contact Dr. Sanders to
obtain a detailed opinion. The applicable regulations state:
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We will seek additional evidence or clarification from your medical
source when the report from your medical source contains a conflict
or ambiguity that must be resolved, the report does not contain all the
necessary information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques. We may do
this by requesting copies of your medical source’s records, a new
report, or a more detailed report from your medical source, including
your treating source, or by telephoning your medical source.
20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) (emphasis added). But “it is not the
rejection of the treating physician’s opinion that triggers the duty to recontact the
physician; rather it is the inadequacy of the evidence the ALJ receives from the
claimant’s treating physician that triggers the duty.” White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2001) (quotations omitted). Here, the administrative record
contains the medical records from the Pawnee Indian Health Clinic. Further, Dr.
Sanders was not the only treating physician and the records from the other
treating physicians are contained in the record as well. Thus, the ALJ did not err
in failing to recontact Dr. Sanders.
Finally, Ms. Stokes claims that although the ALJ was aware she was on
medication, he “failed to consider [her] medication and side effects with any
significant degree of accuracy.” Aplt. Opening Br. at 41. In support for this one-
sentence argument, Ms. Stokes cites to a district court case and federal
regulations which merely stand for the proposition that when considering
subjective complaints of pain the ALJ should consider, among other things, the
effects of the claimant’s medications. Ms. Stokes’ testimony as to her limitations
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would clearly have taken into account the effects of her medications, as would the
various objective tests in the record. Ms. Stokes’ counsel made no argument at
the administrative hearing regarding any extraordinary effects of her medications
and her appellate brief does not specify what effects the ALJ failed to properly
consider.
Finally, Ms. Stokes argues that the hypothetical the ALJ presented to the
VE was incomplete. She argues the hypothetical was deficient because it
insufficiently considered Dr. Hickman’s finding in the post-hearing MSE that
Ms. Stokes was markedly limited in her ability to sustain an ordinary routine
without special supervision. Ms. Stokes failed to raise this argument with the
district court. We do not ordinarily address arguments not first raised in the
district court. Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent
compelling reasons, we do not consider arguments that were not presented to the
district court.”). Here, Ms. Stokes argues that this is purely a legal argument and
it is not intended to surprise the Commissioner and should be considered despite
the failure to present it to the district court. But not only was this issue not raised
in the district court, it was not raised in Ms. Stokes’ opening brief. An appellant
must raise all issues and arguments to be reviewed in their opening brief. See
Fed. R. App. P. 28 (a)(5) & (9)(A). An issue or argument insufficiently raised in
the opening brief is deemed waived. Becker v. Kroll, 494 F.3d 904, 913 n.6
(10th Cir. 2007).
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V.
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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