Bradley v. Colvin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MITCHELL BRADLEY,
Plaintiff - Appellant,
v. No. 15-6137
(D.C. No. 5:14-CV-00498-L)
CAROLYN W. COLVIN, Acting (W.D. Okla.)
Commissioner of Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Mitchell Bradley appeals a decision by the Commissioner of Social Security
denying his application for benefits. We affirm.
I. Background
Bradley applied for disability insurance benefits and supplemental security
income, claiming a variety of impairments left him unable to work. An
administrative law judge (ALJ) evaluated Bradley’s claim using the five-step
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
disability determination process. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (summarizing the five-step process). At the second step, the ALJ found
Bradley had severe impairments, including “status post cervical surgery with
hardware, degenerative disc disease of the lumbar spine, depression, anxiety, and
polysubstance abuse in remission”; and several nonsevere impairments, namely,
“status post third metacarpal shaft fracture, bilateral carpal tunnel syndrome and
status post right carpal tunnel release, shoulder pain, obesity, and infective otitis
externa.” Aplt. App., Vol. I at 63. The ALJ determined at the fourth step that
Bradley had the residual functional capacity (RFC) “to perform light work . . . no
more than SVP 2 . . . [but could only] occasionally stoop, kneel, and crouch.” Id. at
67. The ALJ found that Bradley could not perform his past relevant work, but
nonetheless denied his claim at the fifth step because Bradley could do other work
existing in significant numbers in the national economy.
The Appeals Council denied review and, upon a magistrate judge’s
recommendation, the district court affirmed.
On appeal to this court, Bradley claims the ALJ’s RFC determination was
flawed because he (1) improperly evaluated Bradley’s credibility; (2) incorrectly
weighed the various medical opinions; and (3) failed to consider Bradley’s cervical
impairments, lumbar impairments, and hand impairments.
II. Standard of Review
It is a social security claimant’s burden to prove he is disabled. Maes v.
Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). We review the district court’s ruling
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de novo, but independently determine whether the ALJ correctly applied the law and
whether substantial evidence supports the ALJ’s findings. Wall, 561 F.3d at 1052.
III. Waived Claims
The Commissioner argues that Bradley waived most of his claims by failing to
raise them to the magistrate judge or in his objections to the magistrate judge’s report
and recommendation. We agree.
“[W]aiver principles developed in other litigation contexts are equally
applicable to social security cases.” Berna v. Chater, 101 F.3d 631, 632 (10th Cir.
1996) (internal quotation marks omitted). As a result, a claimant’s failure to raise an
issue to the magistrate judge or in his objections to the magistrate judge’s
recommendation may preclude him from raising the issue on appeal. Id. at 632-33.
Bradley did not raise his challenges to the ALJ’s weighing of medical opinions
and assessment of his cervical and lumbar impairments to the magistrate judge, and
therefore waived these claims on appeal. See ClearOne Commc’ns, Inc. v. Biamp
Sys., 653 F.3d 1163, 1185 (10th Cir. 2011); Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996). Likewise, Bradley waived his claim that the ALJ improperly
evaluated his credibility by not raising the issue in his objections to the magistrate
judge’s report and recommendation.1 See Soliz v. Chater, 82 F.3d 373, 375-76
(10th Cir. 1996).
1
Bradley does not argue that an exception to this firm waiver rule applies. See
In re Key Energy Res. Inc., 230 F.3d 1197, 1200 (10th Cir. 2000). In fact, he neither
addressed the waiver issue in his opening brief nor filed a reply brief in response to
the Commissioner’s argument.
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This leaves only one issue for us to review: whether the ALJ properly
considered Bradley’s hand impairments in assessing his RFC.
IV. Consideration of Hand Impairments
Bradley argues the ALJ erred by failing to consider his hand impairments,
particularly carpal tunnel syndrome, in determining his RFC. We disagree.
When assessing a claimant’s RFC, the ALJ must consider all the relevant
evidence in the record. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This
includes evidence of all medically determinable impairments, even those that are not
severe. Id. §§ 404.1545(a)(2), 416.945(a)(2). But while the record must show the
ALJ considered all the evidence, he is not required to discuss every piece. Mays v.
Colvin, 739 F.3d 569, 576 (10th Cir. 2014).
Here, the ALJ discussed Bradley’s hand impairments in detail at the second
step in the analysis. The ALJ noted Bradley had suffered a third metacarpal shaft
fracture in his right hand, but concluded the impairment was not severe because
Bradley had corrective surgery and did not seek ongoing treatment. The ALJ also
recognized that Bradley had been diagnosed with bilateral carpal tunnel syndrome,
but that a subsequent examination revealed normal hand skills, normal fine tactile
manipulation of objects, and no objective signs of carpal tunnel syndrome at all. The
ALJ determined this was not a severe impairment because Bradley had undergone a
carpal tunnel release, after which there was no record of ongoing treatment. This
discussion shows the ALJ considered Bradley’s hand impairments in his decision.
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Bradley claims the ALJ erred by failing to discuss his hand impairments again
at the fourth step when the ALJ determined his RFC, but we disagree. The ALJ
recognized his obligation at this step to consider all “impairments, including
impairments that are not severe.” Aplt. App., Vol. I at 62. And the ALJ said he took
into account “the entire record” and “all symptoms” in determining Bradley’s RFC.
Id. at 67. It is clear this included Bradley’s hand impairments because the ALJ
discussed them in detail earlier in the decision. Moreover, when “the ALJ indicates
he has considered all the evidence our practice is to take the ALJ at his word.” Wall,
561 F.3d at 1070 (brackets and internal quotation marks omitted). Because the
record shows the ALJ considered Bradley’s hand impairments in determining his
RFC, the ALJ’s failure to specifically discuss them at the fourth step does not require
reversal. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)
(“merely technical omissions in the ALJ’s reasoning do not dictate reversal”).
V. Conclusion
We affirm the district court’s ruling.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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