Jones v. Berryhill

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DARRELL L. JONES,
Plaintiff - Appellant,
v. No. 17-1107
(D.C. No. 1:16-CV-00553-RBJ)
NANCY A. BERRYHILL, Acting (D. Colo.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Darrell Jones appeals the district court’s judgment affirming a decision of the
Commissioner of the Social Security Administration denying his applications for
disability insurance benefits and supplemental security income. Exercising
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding precedent,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.
BACKGROUND
Jones applied for benefits, claiming he was disabled due to post-traumatic
stress disorder, psychosis, arthritis, gout, lower back pain, and type II diabetes. After
his applications were initially denied, he had a hearing before an administrative law
judge (ALJ). The ALJ evaluated the evidence under the agency’s standard five-step
sequential evaluation set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4).
The ALJ determined that although Jones had several severe impairments, including
“history of right leg fracture” and “mild cataracts and refractive amblyopia,” Aplt.
App., Vol. I at 13, none met or equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, that are so severe as to preclude employment. The ALJ then
found that Jones had the residual functional capacity (RFC) to work in the medium
exertional category subject to a number of limitations, one of which is relevant to the
issues in this appeal—that Jones “has the capacity for frequent vision in the areas of
far acuity, near acuity, accommodation and depth perception.” Aplt. App., Vol. I
at 16.
At step four of the analysis, the ALJ determined that Jones’s RFC permitted
him to return to his prior relevant work as a warehouse worker. Alternatively, the
ALJ found at step five that Jones could perform several other jobs that exist in
significant numbers in the national economy, including, as relevant to this appeal, the
job of dishwasher. Accordingly, the ALJ concluded that Jones wasn’t disabled and
denied his applications. The district court affirmed, and Jones appeals.
2
DISCUSSION
Our task in this appeal is limited to determining whether substantial evidence
supports the agency’s factual findings and whether the agency applied the correct
legal standards. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). We can’t “reweigh the
evidence” or “substitute our judgment for that of the agency.” Id. (internal quotation
marks omitted).
A. Vision capacity
Jones first contends that the ALJ erred in finding he “has the capacity for
frequent vision in the areas of far acuity, near acuity, accommodation and depth
perception.” Aplt. App., Vol. I at 16. He claims the medical evidence shows that his
limitations in these areas prevent him from returning to his past relevant work as a
warehouse worker. But we need not resolve this issue. Instead, we can assume that
the ALJ’s RFC was mistaken as to Jones’s vision and that Jones can’t work as a
warehouse worker. Then, based on that assumption, we must decide whether the error
was harmless. To deem an error harmless in the social-security context, we must be
able to say with confidence that “no reasonable administrative factfinder, following
the correct analysis, could have resolved the factual matter in any other way.” Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
We conclude that any error in the ALJ’s step-four finding was harmless given
the ALJ’s alternative finding at step five that Jones could work as a dishwasher.
3
See Murrell v. Shalala, 43 F.3d 1388, 1389–90 (10th Cir. 1994) (affirming step-five
finding despite alleged errors at step four). The dishwasher job the ALJ relied on at
step five requires no near acuity, far acuity, depth perception, or accommodation.
See Dictionary of Occupational Titles (DOT) No. 318.687-010, available at 1991 WL
672755 (indicating that such abilities are “Not Present” in the position of “kitchen
helper”1). Jones hasn’t argued that his vision impairment prevents him from
performing the dishwasher job, and the ALJ found that there were 550,000 such jobs
available in the national economy. Jones isn’t under a disability if he can perform
other kinds of work that exists in the national economy “in significant numbers.”
42 U.S.C. § 423(d)(2)(A) (emphasis added). 550,000 jobs is significant.
See Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (noting that this court
has found “only 152,000 jobs in the national economy” to be “significant” (internal
quotation marks omitted)). The only remaining question for harmless error purposes
is whether the ALJ erred in finding that Jones could perform work at the medium
exertional level, which the dishwasher job requires.
B. Exertional capacity
Work at the medium exertional level “involves lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”
20 C.F.R. §§ 404.1567(c), 416.967(c). To meet the requirement to lift and carry up
1
Although the ALJ described the position as “dishwasher,” she referred to
DOT No. 318.687-010, which is titled “Kitchen Helper” and includes washing dishes
among a variety of tasks. See 1991 WL 672755.
4
to 25 pounds, “[a] full range of medium work requires standing or walking, off and
on, for a total of approximately 6 hours in an 8-hour workday.” SSR 83-10,
1983 WL 31251, at *6 (1983). The ALJ gave significant weight to the opinion of a
state agency nonexamining consultant, Dr. Gawo, who opined that Jones could
perform at such a level,2 and gave little weight to the opinions of four other
consulting physicians who said he couldn’t. The ALJ reasoned that Dr. Gawo was
familiar with the disability regulations; his opinion was the most consistent with the
medical evidence; the opinions of three consultants who examined Jones
(Drs. Amundson, Mitchell, and Traister) were largely inconsistent with their own
relatively benign objective findings; and the opinion of the fourth consultant,
Dr. Clark, who testified as an expert before the ALJ based on the three examining
consultant’s reports, was also inconsistent with their relatively benign objective
findings.3
2
Jones complains that the ALJ said Dr. Gawo found him capable of light
work, and he suggests that we should question whether the ALJ even understood the
substance of Dr. Gawo’s opinion. But we agree with the Commissioner that the
reference was a scrivener’s error given that the ALJ gave significant weight to
Dr. Gawo’s opinion and concluded that Jones had the RFC for medium work.
3
In 2010, Dr. Amundson thought Jones could stand and walk about six hours
in a workday but required breaks every 30 to 60 minutes and could carry only 20
pounds frequently or occasionally. In 2012, Dr. Mitchell said Jones could stand or
walk for four hours in a workday, required positional changes every 15 to 30
minutes, and could lift or carry 20 pounds frequently and 40 pounds occasionally.
Also in 2012, Dr. Traister opined that Jones could stand and walk only 90 minutes in
a workday and could lift and carry 50 and 30 pounds respectively. At the hearing in
2014, Dr. Clark posited that Jones could stand and walk a total of four hours per
workday and had no lifting limitation.
5
Jones argues that the four other doctors’ opinions overwhelmed Dr. Gawo’s
opinion. Thus, he reasons that Dr. Gawo’s opinion doesn’t constitute substantial
evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005)
(“Evidence is not substantial if it is overwhelmed by other evidence in the record
. . . .” (internal quotation marks omitted)). But the ALJ explained why she
discounted the four physicians’ opinions, and Jones hasn’t challenged those
explanations. And although he contends that the ALJ didn’t properly consider the six
regulatory factors used to evaluate medical opinions set forth in 20 C.F.R.
§§ 404.1527(c) and 416.927(c), the substance of his argument is limited to the fact
that Dr. Gawo didn’t examine him but three of the other four doctors did, and two of
their opinions were largely consistent. That might implicate the second factor’s
“[n]ature and extent of the treatment relationship,” including “the kinds and extent of
examinations and testing the [medical] source has performed or ordered,” 20 C.F.R.
§§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). The ALJ, however, was well aware of
whether each of the five doctors examined Jones, and the ALJ was entitled, indeed
required, to consider Dr. Gawo’s opinion even though he didn’t examine Jones. See
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (explaining that an ALJ is
entitled to consider the opinions of nonexamining physicians); 20 C.F.R.
§§ 1513a(b)(1), 416.913a(b)(1) (requiring ALJs to consider evidence supplied by
agency medical consultants according to §§ 404.1527 and 416.927 because such
“consultants are highly qualified experts in Social Security disability evaluation”); cf.
20 C.F.R. §§ 404.1527(c)(6) 416.927(c)(6) (directing ALJs to consider how much
6
understanding a medical source has of “disability programs and their evidentiary
requirements”).
The ALJ was only required to give “good reasons” for the relative weight she
gave to the five physicians. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Jones hasn’t shown that the ALJ’s reasons weren’t “good.” But he does present one
more attack on the validity of Dr. Gawo’s opinion—that it merely endorsed the
opinion of a single decision-maker (SDM) who initially denied Jones’s applications
and assessed him with an RFC consistent with medium work. Jones contends that
because the SDM was a non-expert, his opinion may not be a proper medical opinion
under agency regulations, and Jones points out that the SDM did not examine him.
But the ALJ did not merely rely on the SDM’s opinion of Jones’s exertional capacity,
which is impermissible under the agency’s own regulations, see Program Operations
Manual System DI 24510.050 C. (“SDM-completed forms are not opinion evidence at
the appeal levels.”).4 Rather, the ALJ relied on the opinion of Dr. Gawo, who did not
summarily endorse the SDM’s opinion as to exertional capacity but reviewed and
evaluated the medical evidence, explained that the medical evidence didn’t support
Dr. Traister’s standing and walking limitations, and affirmed the SDM’s view
because it was “reasonable,” Aplt. App., Vol. 6 at 768.
4
The POMS is a set of Social Security Administration polices used in claim
processing to which we defer “unless we determine they are arbitrary, capricious, or
contrary to law.” Ramey v. Reinertson, 268 F.3d 955, 964 & n.2 (10th Cir. 2001)
(internal quotation marks omitted).
7
Jones provides no authority for the proposition that the ALJ acted
impermissibly under these circumstances. Moreover, the scant nonprecedential
authority the Commissioner cites or that we have found suggests the opposite, at least
where, as here, substantial evidence supports the consulting physician’s opinion
endorsing or adopting the SDM’s assessment. See, e.g., Quinn v. Colvin,
No. 6:15-cv-03203-NKL, 2015 WL 9460144, at *5 (W.D. Mo. Dec. 24, 2015)
(unpublished) (concluding that substantial evidence supported ALJ’s decision to
accord great weight to opinion of state agency medical consultant who reviewed and
adopted an SDM’s opinion); Long v. Colvin, No. CIV-14-402-F, 2015 WL 5692318,
at *10 (W.D. Okla. Sept. 11, 2015) (unpublished) (affirming ALJ’s reliance on
consultant’s opinion that affirmed SDM’s assessment, and collecting cases)5; Keel v.
Colvin, No. 13-1458-SAC, 2015 WL 1034419, at *6, n.1 (D. Kan. Mar. 10, 2015)
(unpublished) (“An ALJ does not err by relying on an [SDM’s] opinion affirmed by
an acceptable medial source after reviewing the evidence in the file.”); Holley v.
Colvin, No. 12-4057-JWL, 2014 WL 172183, at *8 (D. Kan. Jan. 15, 2014)
(unpublished) (concluding that SDM’s assessment became a nonexamining
consultant’s “medical findings and analysis as surely as if he had written it himself”
after consultant reviewed all the medical evidence and affirmed the assessment “as
written”).
5
Although Long concerns a magistrate judge’s report and recommendation,
that report was adopted and affirmed in full by the district judge, see Long v. Colvin,
No. CIV-14-402-F, 2015 WL 5708388, at *1 (W.D. Okla. Sept. 28, 2015)
(unpublished).
8
Because the ALJ did not err in finding that Jones could perform work at the
medium exertional level, the ALJ properly found at step 5 that Jones could perform
work as a dishwasher. Thus, we conclude that any step-four error was harmless.
CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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