Allman v. Colvin

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 23, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MICHAEL ALLMAN,
Plaintiff - Appellant,
v. No. 15-7026
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:13-CV-00495-FHS-KEW)
_________________________________
Submitted on the briefs:*
Miles L. Mitzner, Mitzner Law Firm, PLLC, Edmond, Oklahoma, for Plaintiff-Appellant.
Mark F. Green, United States Attorney; Cheryl R. Triplett, Assistant United States
Attorney, Muskogee, Oklahoma; Michael McGaughran, Regional Chief Counsel, Region
VI; Christopher John Carillo, Special Assistant United States Attorney, Social Security
Administration, Dallas, Texas, for Defendant-Appellee.
_________________________________
Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
*
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.
PHILLIPS, Circuit Judge.
_________________________________
Michael Allman applied for Social Security disability benefits, claiming he
could not work due to spina bifida, a shunt in his brain, chronic back pain, headaches,
depression, and anxiety. An administrative law judge (ALJ) concluded that
Mr. Allman’s residual functional capacity (RFC) permitted him to perform a number
of jobs that exist in significant numbers in the national economy, defeating his
disability claim. At step two of the applicable five-step sequential evaluation,1 the
ALJ determined that Mr. Allman’s headaches were not a “severe impairment” within
the meaning of the Social Security Act and its corresponding regulations. See Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Nevertheless, the ALJ discussed and
considered Mr. Allman’s headaches in assessing his RFC to work. In crafting the
RFC, the ALJ also gave “little weight” to the opinion of treating physician Erica Sun,
D.O. Appellant’s App. vol. I at 51.
After the ALJ denied his claim, the Appeals Council denied review and the
district court affirmed after adopting the magistrate judge’s report and
1
At step one, the ALJ must determine whether a claimant presently is engaged
in a substantially gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009). If not, the ALJ then decides whether the claimant has a medically severe
impairment at step two. Id. If so, at step three, the ALJ determines whether the
impairment is “equivalent to a condition ‘listed in the appendix of the relevant
disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the
claimant’s impairment prevents him from performing his past relevant work. Id. Even
if so, the ALJ must determine at step five whether the claimant has the RFC to
“perform other work in the national economy.” Id.
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recommendation and overruling Mr. Allman’s objections. The district court
concluded that Mr. Allman had failed to demonstrate that his headaches qualified as a
severe impairment and that the ALJ had provided sufficient bases for not assigning
more weight to Dr. Sun’s opinion. On appeal, Mr. Allman challenges, among other
things, the district court’s findings regarding the ALJ’s determinations at steps two
and four. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we
affirm.
I
Initially, we note that Mr. Allman properly preserved for review only two of
the arguments he presents on appeal. Specifically, Mr. Allman’s objections to the
magistrate judge’s recommendations do not include the following general arguments
made in his opening brief before us: (1) that the vocational expert’s testimony
conflicts with the Dictionary of Occupational Titles, and (2) that the ALJ used the
term “stable” to indicate that Mr. Allman’s impairments were not severe.
“The scope of our review . . . is limited to the issues the claimant properly
preserves in the district court and adequately presents on appeal.” Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996). We have adopted a firm-waiver rule providing
that the “failure to make timely objection[s]” to a magistrate judge’s
recommendations “waives appellate review of both factual and legal questions.”
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quoting Wirsching v.
Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004)). “There are two exceptions when
the firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed
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of the time period for objecting and the consequences of failing to object, or when
(2) the interests of justice require review.’” Duffield v. Jackson, 545 F.3d 1234, 1237
(10th Cir. 2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.
2005) (internal quotation marks omitted)). Here, neither exception applies because
Mr. Allman has counsel and he does not justify how the interests of justice compel
review. Because Mr. Allman has not adequately presented these arguments to the
district court, they are waived.
Additionally, Mr. Allman failed to argue before the district court that the
ALJ’s findings under Listing 12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1, and his
mental-RFC findings were unsupported by substantial evidence. See Appellant’s
Opening Br. at 10–18 (nesting this argument within his first argument that the ALJ
did not properly consider his headaches). If a claimant fails to present an issue to the
district court, the issue is forfeited unless compelling reasons dictate that the
forfeiture be excused. See 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, Mr. Allman offers no justification at all, much less any
compelling reason, for his failure to preserve this issue. Accordingly, Mr. Allman
forfeits this argument.
II
Regarding the issues he did raise in the district court, Mr. Allman argues that
the ALJ erred in not finding that his headaches were a severe impairment at step two
and that the ALJ failed to sufficiently consider his headaches in combination with his
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other severe impairments at step four. He also contends that the ALJ erred in
according little weight to Dr. Sun’s questionnaire at step four. We review whether
substantial evidence supports the factual findings and whether the ALJ applied the
correct legal standards. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
A
Mr. Allman’s step-two argument fails as a matter of law. An impairment is
“severe” if it “significantly limits [a claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). A claimant must make only a de minimis
showing to advance beyond step two. Langley v. Barnhart, 373 F.3d 1116, 1123
(10th Cir. 2004). To that end, a claimant need only establish, and an ALJ need only
find, one severe impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256–57
(10th Cir. 2007) (noting that, for step two, the ALJ explicitly found that the claimant
“suffered from severe impairments,” which “was all the ALJ was required to do”).
The reason is grounded in the Commissioner’s regulation describing step two, which
states: “If you do not have a severe medically determinable physical or mental
impairment . . . or a combination of impairments that is severe . . . , we will find that
you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(ii) (emphasis added). By its plain
terms, the regulation requires a claimant to show only “a severe” impairment—that
is, one severe impairment—to avoid a denial of benefits at step two. Id. (emphasis
added). As long as the ALJ finds one severe impairment, the ALJ may not deny
benefits at step two but must proceed to the next step. Thus, the failure to find a
particular impairment severe at step two is not reversible error when the ALJ finds
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that at least one other impairment is severe. Here, the ALJ found six other
impairments severe.
Mr. Allman’s step-four argument regarding his headaches also fails. While an
ALJ must consider the limiting effects of non-severe impairments in determining the
claimant’s RFC, 20 C.F.R. § 404.1545(e), Mr. Allman concedes that the ALJ
considered his headaches, noting the frequency with which the ALJ referenced such
headaches in his analysis, Appellant’s Opening Br. at 6. We agree that the ALJ’s
references reflect thoughtful consideration of Mr. Allman’s headaches. The ALJ
(1) noted that medical evidence indicates his intermittent headaches were “doing
fairly well,” (2) explained that while Mr. Allman sometimes experienced an increase
in headache symptoms, the increase was temporary and rare, and (3) concluded that
the record contains no pathological clinical signs or medical findings that would
establish the existence of pain so severe as to prevent Mr. Allman from working.
Appellant’s App. vol. I at 46–47, 54. Accordingly, despite his posturing, Mr. Allman
has identified no basis for us to reverse the ALJ’s RFC finding.
B
Though she had been treating Mr. Allman for a short time prior, the earliest
medical record from Dr. Sun is a mental-impairment questionnaire she completed in
September 2011 for evaluating this disability claim. Dr. Sun assessed Mr. Allman
with a global-assessment-of-functioning (GAF) score of 55 and indicated via check
marks that he experienced poor memory; appetite disturbance; sleep disturbance;
personality change; mood disturbance; loss of intellectual ability of 15 IQ points or
6
more; recurrent panic attacks; psychomotor agitation or retardation; feelings of guilt
or worthlessness; difficulty thinking or concentrating; suicidal ideation; oddities of
thought, time, or place disorientation; social withdrawal or isolation; generalized
persistent anxiety; and hostility or irritability. When prompted to identify the clinical
findings that demonstrated the severity of Mr. Allman’s symptoms, Dr. Sun opined,
“He has difficulty with short term memory to the point where he has forgotten
instructions given to him from time of appt end to walking out of office.” Appellant’s
App. vol. III at 494. Dr. Sun noted that she had prescribed four medications to help
with sleep, anxiety, and mood. She observed that Mr. Allman had a “good response
psychiatrically” to the medication. Id. at 495. Dr. Sun also opined that Mr. Allman
has cognitive deficits and a lower IQ due to his spina bifida and shunt.
On this basis, Dr. Sun concluded that Mr. Allman would have difficulty
working at a regular job on a sustained basis because of cognitive deficits, including
poor concentration, poor memory, and a decreased ability to retain learned
information. To that end, she assessed him with slight restriction of activities of daily
living; moderate difficulties in maintaining social functioning; constant deficiencies
in concentration, persistence, and pace; and repeated episodes of decompensation.
Nevertheless, Dr. Sun stated that Mr. Allman could manage benefits in his best
interest.
Mr. Allman’s step-four argument regarding the ALJ’s weight given Dr. Sun’s
opinion also fails. When analyzing a treating physician’s opinion, an ALJ first
considers “whether the opinion is well supported by medically acceptable clinical and
7
laboratory diagnostic techniques and is consistent with the other substantial evidence
in the record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). If so, the
ALJ must give the opinion controlling weight. Id. But if the ALJ decides that “the
treating physician’s opinion is not entitled to controlling weight, the ALJ must then
consider whether the opinion should be rejected altogether or assigned some lesser
weight.” Id. Relevant factors the ALJ may consider include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported
by relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to
the ALJ’s attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quoting Drapeau v.
Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
“Under the regulations, the agency rulings, and our case law, an ALJ must give
good reasons . . . for the weight assigned to a treating physician’s opinion . . . .”
Langley, 373 F.3d at 1119 (first omission in original). The reasons must be
“sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reason for that
weight.” Id. “If the ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.” Id. (brackets omitted).
In this case, the ALJ expressly gave “little weight” to Dr. Sun’s opinion:
Though she is his treating psychiatrist, neither her treating notes nor the
evidence available as a whole support the degree of limitation she
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opined. For example, in relating the claimant’s symptoms in her medical
source statement, she reported that he has memory problems such that
he forgets instructions given to him by the time he walks out of the
office. Though he has reported, on occasion, that he was unclear which
medications he was taking, he has repeatedly demonstrated his
understanding of treatment provider instructions as reflected, for
example, b[y] his knowing which medications to take for exacerbated
GI symptoms. Moreover, objective testing of his memory does not
support the degree of limitation.
Appellant’s App. vol. I at 51. We conclude that substantial evidence supports the
ALJ’s decision to give little weight to Dr. Sun’s. As the ALJ determined, Dr. Sun’s
opinion was not “consistent with the other substantial evidence in the record.”
Pisciotta, 500 F.3d at 1077.
Dr. Sun’s treatment records do not indicate any deficiency in Mr. Allman’s
ability to concentrate or remember things other than two instances where he
neglected to get his medications refilled and one instance where he “doesn’t know
what meds he is taking currently.” Appellant’s App. vol. III at 513; see also id. at
567 (“He states he doesn’t remember taking [Propranolol], yet shows refill x 4 since
7/11.”). At other times, however, Mr. Allman complied with his medications’
instructions. Despite his departure from the prescribed medication schedule,
Mr. Allman still never experienced any suicidal ideation (contrary to Dr. Sun’s
questionnaire); was described at various times as fairly cheerful, euthymic, improved;
and never had a GAF below 55. Many of the problems Dr. Sun describes do not
appear to be medical in nature but instead reflect situational stressors like his pending
Social Security claim. Further, when faced with Mr. Allman’s failure to refill his
medicine, Dr. Sun merely “encouraged compliance.” Id. at 513. Beyond Dr. Sun’s
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treatment notes, the record as a whole reveals that Mr. Allman’s mental limitations
were not as severe as Dr. Sun opined. Medical records show that Mr. Allman was
repeatedly oriented, that his recent and remote memories were intact, that he had a
GAF of 70 to 75, and that he was competent to manage his own finances. Mr. Allman
denied memory disturbances in May 2011.
In short, the record contains support for both the notion that Mr. Allman has
extreme deficiencies in concentration, persistence, and pace, and the notion that his
mental limitations are not that severe. The ALJ was entitled to resolve such
evidentiary conflicts and did so. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
2007) (noting that “the ALJ is entitled to resolve any conflicts in the record”); see
also Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004) (stating that we may not
“displace the agency’s choice between two fairly conflicting views”) (brackets
omitted). Thus, the ALJ appropriately gave Dr. Sun’s opinion little weight.
Concluding otherwise would require us to reweigh the evidence, a task we may not
perform. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).
III
We affirm the district court’s and the ALJ’s denial of benefits.
10