Avery v. Astrue , 313 F. App'x 114 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
February 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KATHERINE G. AVERY,
Plaintiff-Appellant,
v. No. 08-3207
(D.C. No. 6:07-CV-01263-MLB)
MICHAEL J. ASTRUE, Commissioner (D. Kan.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
Plaintiff-appellant Katherine G. Avery appeals from an order of the district
court affirming the Commissioner’s denial of her applications for Social Security
disability and Supplemental Security Income benefits (SSI). She raises three
issues on appeal: that the ALJ failed to properly (1) evaluate certain medical
opinion evidence; (2) take into account Ms. Avery’s limited ability to use her
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
hands in determining her residual functional capacity (RFC); and (3) analyze
Ms. Avery’s credibility. Because we determine that the ALJ properly evaluated
the medical evidence, that the ALJ’s RFC determination was supported by
substantial evidence, and that the ALJ’s credibility findings were “closely and
affirmatively linked to substantial evidence,” Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995) (quotation omitted), we affirm.
I.
Appellant protectively filed her benefit applications on July 31, 2002,
alleging disability with an onset date of February 1, 2001. She initially claimed
disability based on post-polio syndrome; pain in her legs, hips, knees and ankles;
a lesion on her uterus; a problem with her kidneys; and gallstones. The agency
denied her applications initially and on reconsideration.
On March 24, 2004, appellant received a de novo hearing before an
administrative law judge (ALJ). Following the hearing the ALJ found that
Ms. Avery “is mildly obese and has club feet with degenerative arthritis of the
knees and ankles, [and] status-post multiple surgeries[.]” Aplt. App., Vol. 1,
Tab 3 at 38. The ALJ found that these impairments were severe but that they did
not meet or equal any of the criteria listed inthe Listing of Impairments at 20
C.F.R. Pt. 404, Subpt. P, App. 1 (Listings). The ALJ found that, considering
Ms. Avery’s RFC, she was unable to perform her past relevant work as a chop-
saw operator or cook and was unable to perform the full range of sedentary work.
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But the ALJ found that Ms. Avery was not disabled because she could make an
adjustment to other work which existed in significant numbers in the national
economy.
The district court subsequently reversed and remanded pursuant to an
unopposed motion by the Commissioner and a second hearing was held before a
different ALJ. Following that hearing, the ALJ found that the period of disability
in question was from January 8, 2002, through the date of her decision.
The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005) (describing steps). The claimant bears the
burden of establishing a prima facie case of disability at Steps One through Four.
See id. If the claimant successfully meets this burden, the burden of proof shifts
to the Commissioner at Step Five to show that the claimant retains sufficient RFC
to perform work in the national economy, given her age, education, and work
experience. See id.At Step Two of the sequential evaluation, the ALJ found that Ms. Avery
has a “severe” combination of impairments, summarized as: Bilateral
congenital club feet with a superimposed episode of poliomyelitis at
age 2, which left her with cavus feet with tight heel cords and foot
deformities more so on the right, status post multiple surgeries in
childhood; post-polio syndrome; diffuse arthralgias in the back,
knees and hips with objective evidence of mild degenerative changes;
and high moderate (level II) to low extreme (level III) obesity;
alcohol dependence/abuse, not per se “severe”; and history of kidney
removal, September 30, 2002, not per se “severe.”
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Aplt. App., Vol. 2, Tab 3 at 519. The ALJ also found “no medically determinable
impairment of carpal tunnel syndrome [(CTS)] during the period since January 8,
2002.” Id.At Step Three of the sequential evaluation, the ALJ found that Ms. Avery at
no relevant time had an impairment or combination of impairments that met or
equaled any of the criteria specified in the Listings.
As to Ms. Avery’s credibility, the ALJ found
the claimant’s testimony to be partially credible, particularly to the
extent her lower extremity problems, particularly the pes cavus and
great toe deformities (in combination with her obesity), preclude
finding she can perform a job that requires much standing or walking.
The [ALJ] otherwise finds her testimony to be exaggerated, e.g., as to
her statement that she “frequently” attends a free clinic and her
assertion at [the first] hearing that she lies down most of the day in
bed or on the couch due to “excruciating pain.”
Aplt. App., Vol. 2, Tab 3 at 530.
As to her RFC, the ALJ found that “the claimant’s [RFC] since January 8,
2002, has been such that she can perform the full range of sedentary exertional
work subject to environmental limitations against concentrated exposure to
extreme cold and vibrations.” Id.At Step Four of the sequential evaluation, the ALJ found that Ms. Avery
has been unable to perform any of her past relevant work since January 8, 2002.
Finally, at Step Five the ALJ applied Rule 201.14 of the Medical-Vocational
Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2, finding that since Ms. Avery
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could be deemed to be age 50 as of March 1, 2007, she was disabled as of that
date. Regarding the period from January 8, 2002, through February 28, 2007, the
ALJ found that because Ms. Avery was a younger individual under the regulations
at that time, and could perform work that existed in significant numbers in the
national economy, she was not disabled. The Appeals Council denied review,
making the ALJ’s decision the Commissioner’s final decision. The district court
subsequently affirmed the Commissioner’s decision and Ms. Avery has appealed.
Our jurisdiction over Ms. Avery’s appeal is under 28 U.S.C. § 1291. See
42 U.S.C. § 405(g) (“The judgment of the [district] court shall be subject to
review in the same manner as a judgment in other civil actions.”). We review the
Commissioner’s decision to determine whether the factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied. See Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id.(quotation omitted).
II.
In her first point, Ms. Avery argues that the ALJ erred in evaluating
Dr. Anthony Francis’s medical opinion and, regarding the entire record, that the
“ALJ’s analysis of the medical evidence is wholly inadequate and does not
provide substantial evidence to support a denial.” Aplt. Br. at 16.
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A.
Dr. Francis testified at the hearing that, based solely on the administrative
record, it was his opinion that the impairments of Ms. Avery’s knees and ankles
met the level of the musculoskeletal Listing in § 1.02A, and the impairment
caused by her pes cavus (dropped foot) or club foot equaled that Listing.
1.02 Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint
pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to ambulate
effectively, as defined in 1.00B2b[.]
20 C.F.R. Pt. 404, Subpt. P, App. 1. § 1.02. In turn, § 1.00B2b provides:
b. What We Mean by Inability to Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an
extreme limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual’s ability to
independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit independent ambulation
without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities. . . .
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to be
able to carry out activities of daily living. They must have the ability
to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
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without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the inability to carry
out routine ambulatory activities, such as shopping and banking, and
the inability to climb a few steps at a reasonable pace with the use of
a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself,
constitute effective ambulation.
The ALJ asked Dr. Francis about the regulation’s requirement that
Ms. Avery not be able to ambulate effectively, noting that Ms. Avery had testified
that she could walk a block or two. Dr. Francis responded: “I don’t know that
walking a block changes my opinion about that particularly. . . . I mean, we’re
kind of into the same thing that, you know, we’ve come to a lot of times, in other
words, she meets the strict criteria of a listing, I mean, she either meets the listing
or equals it and then, you know, there are other factors that are involved or may
be involved.” Aplt. App., Vol. 2, Tab 3 at 667. Then, under questioning by
Ms. Avery’s attorney, Dr. Francis talked about her pes cavus or club foot, saying:
“And that’s why I say that she would have the equivalent of a major weight
bearing joint under 1.02A just on the basis of the pes cavus or drop foot or club
foot.” Id. at 669.
Dr. Francis also testified that her limitations were equivalent to the
neurological Listings in §§ 11.04B, 11.07D, and 11.14. 1 Section 11.07D is the
1
As a technical point, we note that although Dr. Francis testified Ms. Avery
“would meet 11.04B and 11.07D as equivalent,” (emphasis added) he might also
have meant that her limitations were medically equivalent to the Listing in
(continued...)
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Listing for cerebral palsy with “[d]isorganization of motor function as described
in 11.04B.” Section 11.14 is the Listing for peripheral neuropathies “[w]ith
disorganization of motor function as described in 11.04B, in spite of prescribed
treatment.” Section 11.04 provides:
11.04 Central nervous system vascular accident. With one of
the following more than 3 months post-vascular accident:
....
B. Significant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gait and station (see 11.00C).
In turn, section 11.00C provides:
C. Persistent disorganization of motor function in the form of
paresis or paralysis, tremor or other involuntary movements, ataxia
and sensory disturbances (any or all of which may be due to cerebral
cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction)
which occur singly or in various combination, frequently provides
the sole or partial basis for decision in cases of neurological
impairment. The assessment of impairment depends on the degree of
interference with locomotion and/or interference with the use of
fingers, hands, and arms.
1
(...continued)
§ 11.14 as well. We shall treat his opinion as such because the issue regarding all
of these sections is whether Ms. Avery had the requisite “[s]ignificant and
persistent disorganization of motor function in two extremities resulting in
sustained disturbance of gross and dexterous movements, or gait and station”
described in § 11.04B.
Further, because it is mentioned by Ms. Avery in her brief, we note that the
ALJ referenced § 1.04A a number of times in her decision. The context of the
decision shows that this was simply a scriviner’s error and that the ALJ intended
to reference § 1.02A.
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B.
In determining that Ms. Avery’s impairments did not meet or equal the
Listing found at § 1.02A, the ALJ found
no evidence, including in the claimant’s testimony that she is “unable
to ambulate effectively” as defined in section 1.00B2b. She does not
use crutches or a cane, but she testified she may “sometimes . . . just
grab a stick and use it when [she’s] walking.” There are no medical
observations regarding any perceptive need for her to use any sort of
assistive device or even orthopedic shoes. She testified she can walk
a block and a half. She shops for groceries.
Aplt. App., Vol. 2, Tab 3 at 526 (citation omitted). The ALJ then specifically
discussed Dr. Francis’s testimony and essentially held that the doctor had made a
legal error by concluding that the specific requirement that Ms. Avery be “unable
to ambulate effectively” was not necessary to a determination that Ms. Avery met
or equaled Listing 1.02A. The ALJ stated that she “f[ound] no support in medical
observations or complaints reflected in treatment records dated in the last 5 years
for the proposition that [Ms. Avery] has an ‘inability to ambulate effectively’
within the regulatory meaning.” Id.
In determining that Ms. Avery did not meet the neurological Listings found
at §§ 11.04, 11.07, or 11.14, the ALJ found: “the evidence in this case does not
establish a sufficient ‘degree of interference with locomotion and/or interference
with the use of fingers, hands, and arms’ to warrant finding a neurological listing
is met or equaled.” Id. at 527 (quoting § 11.00C). As noted by the ALJ, in
eliciting Dr. Francis’s opinion that Ms. Avery met one of these neurological
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Listings, Ms. Avery’s attorney directed Dr. Francis to a medical record from
Dr. Daniel Dagen and asked whether that record showed that one of the Listings
was met. In determining that the neurological Listings were not met, the ALJ
noted that the consultative neurological examination in question was “remote”–it
was from three years prior to the alleged onset of disability date. The ALJ also
noted that Dr. Dagen had opined that, although Ms. Avery could not lift weights
over twenty-five pounds, she had
“no difficulty handling light objects and the coordination in her
hands is reasonably good to near normal,” which is consistent with
an October 12, 2002, examination report stating the claimant’s
hobbies are painting and sewing. Dr. Dagen thought she would have
difficulty standing more than 10 minutes or walking more than three
blocks, which is compared to the claimant’s testimony that she can
stand at least 20 to 30 minutes and walk 1 ½ blocks.
Id. (citation omitted) (quoting Aplt. App., Vol. 1, Tab 3 at 258). The ALJ
therefore found that the neurological Listings were not met, specifically noting
that Ms. Avery’s attorney had not presented any more recent medical records to
support her argument.
C.
Ms. Avery argues that the ALJ committed a number of errors in
determining that she did not have an impairment or combination of impairments
that met or equaled any of the criteria specified in the Listings. All but one of
Ms. Avery’s arguments in her first point deal with the ALJ’s treatment of
Dr. Francis’s medical testimony. She argues that, in rejecting Dr. Francis’s
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contention that the Listings at issue were met or equaled, the ALJ (1) f ailed to
properly apply 20 C.F.R. §§ 404.1527 and 416.927 and Social Security Rulings
(S.S.R.) 96-5p and 96-6p (all dealing with the evaluation of medical opinion
evidence), (2) failed to explain the weight she gave Dr. Francis’s opinion,
(3) substituted her own medical judgment for that of Dr. Francis; (4) failed to
“sufficiently explain why she rejected significant probative and uncontroverted
evidence in the record indicating that [Ms.] Avery’s combination of impairments
met and/or equaled the listings,” Aplt. Br. at 10; (5) failed to address
Dr. Francis’s opinion that her impairments were medically equivalent to those
found in the Listings, and (6) “fail[ed] to provide specific, legitimate reasons for
rejecting Dr. Francis’ opinion,” id. at 16. Ms. Avery also generally argues as to
the entire record that “the ALJ’s analysis of the medical evidence is wholly
inadequate and does not provide substantial evidence to support a denial.” Id.We disagree with all these points of error.
First, we note that Ms. Avery presents no specific argument that the ALJ
misinterpreted what it means to be unable to “ambulate effectively” under
§ 1.00B2b, or what “[s]ignificant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of gross and dexterous
movements, or gait and station,” means under §§ 11.04B and 11.00C. Her
argument is that the ALJ did not properly evaluate the evidence.
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Second, it is important to specifically describe Dr. Francis’s testimony.
He began his testimony by noting that he had no doctor/patient relationship with
Ms. Avery and that he was therefore testifying purely from his examination of the
administrative record. He then proceeded to narrate from portions of the record
describing the various diagnoses of Ms. Avery’s physicians. The great majority
of this narrative was simply a list of Ms. Avery’s medical conditions with no
discussion of how they affected her ability to function. In fact, the little
discussion of limitation that was present was nothing more than recitation of
Ms. Avery’s subjective complaints found in the records: e.g., “now is having
severe pain in all joints,” “has aching in the legs from the hips down associated
with prolonged standing,” “[w]hen she was working her legs were miserably achy
at the end of the day,” she is having “hip, knee, ankle and back pain.” Aplt. App.,
Vol. 2, Tab 3 at 664-66. Following this narration, Dr. Francis concluded that
Ms. Avery’s impairments met the level of the Listing in § 1.02A, with no
discussion of how he arrived at his conclusion. As noted previously, when
specifically questioned about the requirement that Ms. Avery not be able to
ambulate effectively, Dr. Francis first seemed surprised that Ms. Avery had
testified that she could walk a block or two, and then testified without explanation
that her ability to do so would not change his opinion.
Ms. Avery’s attorney then asked Dr. Francis to review the medical record
from Dr. Dagen, specifically a section where the doctor found “a profound
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weakness and drop foot that effects gait and ability to walk any distance.” Id.
at 668. The attorney then asked whether Ms. Avery might therefore meet the
Listing in § 11.14. Dr. Francis proceeded to examine sections 11.14, 11.04B,
and 11.07D, and testify, again in a conclusory manner, essentially that
Ms. Avery’s limitations would be equivalent to all three in that she had the
“[s]ignificant and persistent disorganization of motor function in two extremities,
resulting in sustained disturbance of gross and dexterous movements, or gait and
station,” required by 11.04B.
This detailed review of Dr. Francis’s testimony shows that although he
clearly expressed his medical opinion as to the various medical conditions
afflicting Ms. Avery, he left unstated any medical opinion as to the nature and
severity of the impairments caused by those conditions. Instead, he gave opinion
on issues specifically reserved to the Commissioner, namely that these unstated
impairments met or equaled the impairments in the Listings at issue. See
20 C.F.R. §§ 416.927(e)(2) (“Although we consider opinions from medical
sources on issues such as whether your impairment(s) meets or equals the
requirements of any impairment(s) in the Listing of Impairments . . . , the final
responsibility for deciding these issues is reserved to the Commissioner.”);
416.927(e)(3) (“We will not give any special significance to the source of an
opinion on issues reserved to the Commissioner . . . .”).
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Turning to Ms. Avery’s claims of error, she first claims that the ALJ f ailed
to properly apply 20 C.F.R. §§ 404.1527 and 416.927 and S.S.R. 96-5p and
96-6p. 2 Specifically she claims the ALJ failed to explain the weight she gave
Dr. Francis’s opinion, “fail[ed] to provide specific, legitimate reasons for
rejecting Dr. Francis’ opinion,” Aplt. Br. at 16. substituted her own medical
judgment for that of Dr. Francis, failed to address Dr. Francis’s opinion that her
impairments was the medical equivalent of those found in the Listings, and failed
to “sufficiently explain why she rejected significant probative and uncontroverted
evidence in the record indicating that Avery’s combination of impairments met
and/or equaled the listings,” id. at 10. None of these arguments have merit.
First, Dr. Francis’s opinion that Ms. Avery’s impairments met or equaled
the impairments in the Listings at issue were not ignored. See S.S.R. 96-5p, 1996
WL 374183, at *3 (“[O]pinions from any medical source on issues reserved to the
Commissioner must never be ignored.”). In fact, his opinion was extensively
discussed. As to the weight the ALJ gave this opinion, it is clear it was rejected
because the ALJ found the Listings were not met or equaled.
2
Sections 404.1527 (disability insurance) and 416.927 (supplemental
security income) set forth the requirements for evaluating opinion evidence;
S.S.R. 96-5p clarifies the Social Security Administration’s policy “on how [it]
consider[s] medical cource opinions on issues reserved to the Commissioner”; and
S.S.R. 96-6p clarifies the Social Security Administration’s policy “regarding the
consideration of findings of fact by State agency medical and psychological
consultants and other program physicians and psychologists” by ALJs.
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As for the claims that the ALJ failed to provide specific, legitimate reasons
for rejecting Dr. Francis’s opinion, substituted her own medical judgment for his,
and failed to explain why she rejected significant probative and uncontroverted
evidence that Ms. Avery’s combination of impairments met or equaled the
Listings at issue, 3 we note that “[i]f the case record contains an opinion from a
medical source on an issue reserved to the Commissioner, the adjudicator must
evaluate all the evidence in the case record to determine the extent to which the
opinion is supported by the record.” S.S.R. 96-5p, 1996 WL 374183, at *3. That
is just what the ALJ did. In the same ruling the Social Security Administration
(SSA) stated that “[w]hether the findings for an individual’s impairment meet the
requirements of an impairment in the listings is usually more a question of
medical fact than a question of medical opinion.” Id. Further, “[i]n most
instances, the requirements of listed impairments are objective, and whether an
individual’s impairment manifests these requirements is simply a matter of
documentation.” Id. In this case, the ALJ turned to the documentation from the
treating sources regarding Ms. Avery’s impairments and to Ms. Avery’s own
testimony regarding her limitations in determining that the Listings were not met
or equaled. This was not error.
3
We assume Ms. Avery means Dr. Francis’s testimony when she refers to
“significant probative and uncontroverted evidence” being rejected. Aplt. Br.
at 10. She does not identify any other evidence to which she might be referring.
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We turn next to Ms. Avery’s claim that the ALJ failed to address
Dr. Francis’s opinion that her impairments were medically equivalent to those
found in the Listings. 4 Equivalence is a decision “‘on medical evidence only’
because this finding does not consider the vocational factors of age, education,
and work experience.” Id. at *4 (quoting 20 C.F.R. §§ 404.1526 and 416.926).
The regulations provide that medical equivalence can be found in three
ways. First, if the claimant has an impairment that is described in the Listings,
but the claimant (1) does not exhibit one or more of the findings specified in that
Listing, or (2) exhibits all of the findings, but one or more of the findings is not
as severe as specified in the particular Listing, the Commissioner will find that
the claimant’s impairment is medically equivalent to that Listing if the claimant
has other findings related to his or her impairment that are at least of equal
medical significance to the required criteria. See 20 C.F.R. § 404.1526(b).
4
In S.S.R. 96-5p, the SSA ruled regarding medical opinions on the issue of
medical equivalency that
[a] finding of equivalence involves more than findings about the
nature and severity of medical impairments. It also requires a
judgment that the medical findings equal a level of severity set forth
in 20 CFR 404.1525(a) and 416.925(a); i.e., that the impairment(s) is
“. . . severe enough to prevent a person from doing any gainful
activity.” This finding requires familiarity with the regulations and
the legal standard of severity set forth in 20 CFR 404.1525(a),
404.1526, 416.925(a), and 416.926. Therefore, it is an issue reserved
to the Commissioner.
1996 WL 374183, at *4.
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Second, if the claimant has an impairment that is not described in the Listings, the
Commissioner compares the claimant’s findings with those for closely analogous
listed impairment and, if the findings related to the claimant’s impairment are at
least of equal medical significance to those of a listed impairment, the
Commissioner will find that medical equivalence. Id. Third, if the claimant has a
combination of impairments, no one of which meets a Listing, the Commissioner
compares the claimant’s findings with those for closely analogous listed
impairments and if the findings related to the claimant’s impairments are at least
of equal medical significance to those of a listed impairment, the Commissioner
will find the combination of impairments medically equivalent to that Listing. Id.Although Dr. Francis did not specify how he reached his medical
equivalency determination, under any of the three options he would have to have
found that the medical findings regarding Ms. Avery’s impairments were of equal
medical significance to the required criteria of a listed impairment. After
considering the evidence in the record, the ALJ determined that the required
functional limitations of being unable to “ambulate effectively” under in § 1.02A,
see Aplt. App., Vol. 2, Tab 3 at 526, and–regarding the suggested neurological
Listings–having the required “degree of interference with locomotion and/or
interference with the use of fingers, hands, and arms” described in 11.00C, see id.
at 527, were not met or equaled. Thus, the ALJ clearly rejected Dr. Francis’s
conclusory opinion on equivalency, an issue reserved to the Commissioner. As
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Dr. Francis did not testify as to the medical findings or reason behind his
equivalency opinion, nothing more was required of the ALJ.
Finally, Ms. Avery generally argues as to the entire record that “the ALJ’s
analysis of the medical evidence is wholly inadequate and does not provide
substantial evidence to support a denial.” Aplt. Br. at 16. Her argument is:
When evaluating the medical evidence, the ALJ cited to and provided
a discussion of the medical record. However, the ALJ never
indicated whether she accepted or rejected statements made in the
medical exhibits. When, as here, an ALJ does not provide any
explanation for rejecting medical evidence, this court cannot
meaningfully review the ALJ’s determination.
Id. (citation omitted). Ms. Avery does not provide examples of the favorable
medical evidence she alleges was improperly rejected. Our independent review of
the ALJ’s decision shows significant discussion of the record surrounding the
ALJ’s analysis regarding her alleged CTS, the Listings, and her credibility.
Sufficient findings were therefore clearly made to allow meaningful review of the
three issues raised on appeal.
III.
In her second point, Ms. Avery argues that the ALJ erred by not including
limitations on the use of Ms. Avery’s hands in making her RFC determination.
Ms. Avery notes that although the ALJ found she could perform a full range of
sedentary exertional work, S.S.R. 96-9p rules that unskilled sedentary exertional
work requires good use of the hands and the ability to perform repetitive tasks
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with the hands, abilities she argues she does not posess. We disagree, holding
that the ALJ’s decision was supported by substantial evidence.
The ALJ spent considerable effort in analyzing Ms. Avery’s CTS claim,
and determining the evidence did not support finding a “medically determinable
impairment of [CTS] during the period since January 8, 2002.” Aplt. App.,
Vol. 2, Tab 3 at 519. The ALJ noted that Ms. Avery made no formal claim of
CTS at the first hearing, claiming only that her right hand had a tendency to get
numb. She made only one claim of CTS in her written disability claims, asserting
she needed help with pots and pans due to weak wrists from CTS. The ALJ also
noted that at the second hearing Ms. Avery testified that CTS was first diagnosed
at a consultative disability examination and CTS surgery had not been
recommended. Turning to the administrative record, the ALJ noted that a
consultative examination performed in 2001 found her upper extremity evaluation
“essentially normal,” with right hand grip strength of 60 pounds and left hand
grip strength of 70 pounds; that an October 2, 2002, evaluation did not mention
any hand complaints or problems; and that a further evaluation ten days later
showed complaints unrelated to hand problems, a right hand grip strength of
10 pounds and left hand grip strength of 40 pounds, but no CTS diagnosis.
Id. at 524 (quotation omitted). The ALJ found that the CTS was not a severe
impairment during the claimed period of disability “with particular attention to
the dearth of CTS complaints in claimant’s written allegations of disability and
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the lack of CTS complaints on examination and in treatment during the past 5
years.” Id. at 525.
Ms. Avery claims the ALJ failed to properly consider certain medical
records. She points first to a 1998 record from Dr. Dagen, wherein she was
diagnosed with “[CTS], bilateral–moderately severe.” Id., Vol. 1, Tab 3 at 257.
First, we note that Dr. Dagen’s medical record was from a number of years prior
to the alleged period of disability, and that, although the ALJ acknowledged
“remote” diagnoses of CTS, she discounted them due to lack of recent CTS
complaints in the more recent records. Id., Vol. 2, Tab 3 at 525. Second,
Dr. Dagen also found
Her more recent onset upper extremity symptoms are due to [CTS],
which is present bilaterally. The patient has weakness in her arms
secondary to her remote motor neuron disease, i.e. poliomyelitis.
This has resulted in dyscoordination of her hands and some
weakness, making it impractical for her to lift or carry objects
weighing more than 25 pounds. The patient has no difficulty
handling light objects and the coordination in her hands is reasonably
good to near normal.
Id., Vol. 1, Tab 3 at 258. The ALJ’s RFC was for sedentary work, which
“involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R.
§ 404.1567. This is well within Dr. Dagen’s finding that she could not lift or
carry objects weighing more than twenty-five pounds. Third, although
S.S.R. 96-9p ruled that “[a]ny significant manipulative limitation of an
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individual’s ability to handle and work with small objects with both hands will
result in a significant erosion of the unskilled sedentary occupational base,”
1996 WL 374185, at *8 (emphasis in original), Dr. Dagen found that Ms. Avery
“ha[d] no difficulty handling light objects and the coordination in her hands is
reasonably good to near normal,” Aplt. App., Vol. 1, Tab 3 at 258.
Ms. Avery also directs this court to a 2003 evaluation by Dr. T. M. Venkat
that showed that she had a right hand grip strength of 20 pounds and left hand
grip strength of 40 pounds. Id., Vol. 2, Tab 3 at 435. But there is no diagnosis of
CTS, no record of any complaint regarding her ability to use her arms, and
Dr. Venkat found “[t]he patient does not have any difficulty in picking up the
coin or opening the door. The patient is able to write her name without any
difficulty.” Id.Ms. Avery next points to a November 2001 medical record, also prior to the
onset of disability date, from Dr. Arun Sharma. The record shows that she
reported her left hand tingling, getting numb, and hurting and that she was not
able to lift things at times. Id., Vol. 1, Tab 3 at 344. Dr. Sharma diagnosed
“LEFT HAND PAIN WITH PROBABLE [CTS],” although the examination
section of the record does not show any examination of Ms. Avery’s upper
extremities. Id.Finally, Ms. Avery claims that the ALJ did not properly evaluate her
subjective claims with regard to her alleged CTS. She testified at the second
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hearing that she had CTS; that she took Tylenol to treat it; that the CTS caused
her hands and fingers to “lock up,” id., Vol. 2, Tab 3 at 658; and that she had
tingling in both arms to her shoulders two to three, and maybe more, times a day,
id. at 660. When she was asked whether anyone had recommended surgery for
her CTS, she said no, but claimed she had “been seeing the free clinic here
frequently.” Id. at 658. The ALJ, following the framework set forth in Luna v.
Bowen, 834 F.2d 161 (10th Cir. 1987), determined that there was “at least a ‘loose
nexus’ between the claimant’s impairments and her subjective allegations.” Aplt.
App., Vol. 2, Tab 3 at 528. But as to her subjective complaint regarding her CTS
symptoms–i.e., tingling in both arms to her shoulders two to three, and maybe
more, times a day–the ALJ found that her testimony was undermined by her claim
that she was being seen frequently at a “free clinic” for her CTS. The ALJ found
this claim was quite exaggerated since the newest medical record in the
administrative record was from May 2005, almost a year prior to the second
hearing, and that she had been seen for treatment only once in 2003. Id. at 529.
From the above, we hold that the ALJ’s decision not to include any
manipulative or repetitive motion limitations in Ms. Avery’s RFC to account for
her alleged CTS was supported by substantial evidence, in that there was “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Flaherty, 515 F.3d at 1070 (quotation omitted). Ms. Avery’s only
claim of CTS in her written disability forms alleged that it made her wrists weak
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so that she needed help with pots and pans. But the RFC, with its limitation to
sedentary work, took into account Ms. Avery’s inability to lift and carry heavy
objects. As to the requested manipulative or repetitive motion limitations, even
the older medical records that diagnosed CTS do not support such limitations, and
the newer records do not diagnose CTS.
IV.
In her third and final point, Ms. Avery complains in a conclusory manner
that the ALJ erred in finding her not fully credible. Citing Kepler, 68 F.3d at 391(“[F]indings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings”) (quotation
omitted), she directs this court to page 516 of Vol. 2, Tab 3, of her appendix, and
asserts that the ALJ simply stated that she considered Ms. Avery’s subjective
complaints without providing a more detailed analysis. This is a
mischaracterization of the record. The ALJ’s decision spent a number of pages
analyzing credibility, see Aplt. App., Vol. 2, Tab 3 at 527-30, and the ALJ was
very specific as to what parts of Ms. Avery’s testimony she found exaggerated,
and why. Further, page 516 does not reference either credibility or Ms. Avery’s
subjective complaints.
Ms. Avery goes on to argue that the ALJ “based her pain and credibility
determinations on mistaken observations from the record,” Aplt. Br. at 21,
without identifying any of the allegedly mistaken observations. She then closes
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by reiterating her first conclusory assertion, arguing: “Although the ALJ stated
she considered [Ms.] Avery’s subjective complaints, she did not provide a
sufficient discussion on how the evidence related to her analysis nor her ultimate
conclusion that Avery’s allegations were significantly greater than indicated in
the medical record.” Id.As our independent review of the record shows that the ALJ’s credibility
findings were “closely and affirmatively linked to substantial evidence,” Kepler,
68 F.3d at 391, this point is denied.
V.
The judgment of the district court is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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