Crane v. Astrue

FILED
United States Court of Appeals
Tenth Circuit
March 17, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KAREN CRANE,
Plaintiff-Appellant,
v. No. 09-3137
(D.C. No. 6:08-CV-01055-JTM)
MICHAEL J. ASTRUE, Commissioner (D. Kan.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and ANDERSON, Circuit Judges.
Karen Crane appeals from a judgment of the district court affirming the
Commissioner’s denial of her application for Social Security disability benefits
and supplemental security income benefits. Exercising jurisdiction under
28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
I.
Ms. Crane was 47 years old at the time of her final hearing before the
administrative law judge (ALJ). In her July 23, 2002, application, she claimed
disability as of January 1, 2001, due to “[n]umbness in legs, muscles tightening
up – stiffness, makes walking extremely hard to do every day it gets worse.”
R. Vol. 2 at 134. In October 2002, Ms. Crane had back surgery. The ALJ
conducted two hearings. The first hearing took place on October 13, 2004.
When asked about his theory of the case, Ms. Crane’s lawyer explained:
I think she’s disabled [at] five of the sequential process. She had a
serious back surgery, which the, an MRI following the surgery
showed she still had spinal cord problems that would justify her
complaints. She also has mental impairments. . . . [S]he’s also
started [mental health] treatment . . . just last month[,] [b]ut we
haven’t been able to obtain . . . that record yet.
Id. at 838-39.
Among the records presented was a December 2002 consultative mental
status examination that contained a diagnosis of dysthymia, but the examiner had
concluded that this impairment resulted in either no or only mild functional
limitations. Ms. Crane’s lawyer also offered records from a February 2004 visit
to the emergency room, which contained a clinical impression of “anxiety.”
Id. at 744. The visit occurred after she was licked by a dog that she believed to
have been poisoned. Ms. Crane sought mental-health treatment beginning in
September 2004, and her lawyer had requested the records of that treatment.
-2-
In addition, the ALJ heard testimony from Ms. Crane. At the conclusion of
the hearing, he referred her for a “psych CE [consultative examination], with
appropriate testing,” id. at 865, and “an orthopedic CE, since the previous CE was
done on a prospective type basis, because they expected her to improve [after
surgery],” id. at 866. The second hearing was held on June 14, 2005. Ms. Crane
again testified, along with a vocational expert.
In his decision the ALJ found that Ms. Crane had a number of severe
impairments that precluded her from performing her past relevant work. At step
five of the five-step sequential evaluation process, however, he found that the
Commissioner had met his burden of proving that Ms. Crane retained sufficient
residual functional capacity to perform other work in the national economy.
He thus concluded that she was not disabled. The Appeals Council denied her
request for review, making the ALJ’s denial of benefits the agency’s final
decision. The district court affirmed.
II.
Because we review de novo the district court’s ruling in a social security
case, “we independently determine whether the ALJ’s decision is free from legal
error and supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (internal quotation marks omitted). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but less than a
-3-
preponderance.” Id. (internal quotation marks omitted). “[W]e neither reweigh
the evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y
of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
A.
At step two of the five-step sequential evaluation process, the ALJ
determines whether the claimant has a medically severe impairment or
impairments. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also
Wall, 561 F.3d at 1052. The ALJ found that Ms. Crane had the following
medically determinable severe impairments: “dysthymic disorder; learning
disorder; degenerative disk disease-lumbar spine; subdural extramedullary mass,
status post surgery; and, migraine headaches.” R. Vol. 2 at 30. Ms. Crane argues
that the following impairments were also medically determinable and that the ALJ
erred when he did not include them in his analysis of her residual functional
capacity at step four: schizoaffective disorder; paranoid personality disorder;
obsessive compulsive personality disorder; and general anxiety disorder.
We summarize the pertinent evidence before turning to the analysis.
On December 18, 2002, Jill Spradlin, Psy.D., met with Ms. Crane at the Cowley
County Mental Health & Counseling Center (Cowley). According to
Dr. Spradlin, Ms. Crane was referred “to get a statement . . . so that she
could have a hysterectomy.” Id. at 791. After listing her diagnostic impression
of “Schizoaffective Disorder” and “[rule out] Paranoid Personality Disorder,”
-4-
Dr. Spradlin wrote: “It is highly recommended that Ms. Crane undergo a full
psychological evaluation to fully assess her diagnosis. Psychological testing,
including personality testing with measures of validity is recommended.” Id.
at 793. But testing was not completed, because Ms. Crane did not respond
“[a]fter numerous attempts to reach her and encourage her to finish the testing.”
Id. at 778. Dr. Spradlin closed the file in April 2003.
Ms. Crane returned to Cowley in September 2004, in response to the
anxiety she experienced in February 2004 when she was licked by a dog. This
time she was seen by Alan Smith, a marriage-and-family therapist. He wrote,
“[She] states that the reason she is out here is because of medical conditions and
financial stress.” Id. at 785. He diagnosed her with generalized anxiety disorder
and obsessive-compulsive personality disorder. Mr. Smith closed Ms. Crane’s
file on March 7, 2005, because “[s]he attended two appointments, no showed
once and did not respond to a contact letter.” Id. at 777. Her last visit to Cowley
was on April 4, 2005, when she was seen by Kathy Schwinghammer, also a
marriage-and-family therapist. Ms. Crane “reported symptoms of depression,
which she feels stem from conflicts with her boss at work.” Id. at 780.
Ms. Schwinghammer listed, among other things, general anxiety disorder and
personality disorder in her diagnosis. 1
1
Ms. Schwinghammer also included dysthymia and a learning disorder in her
diagnosis. The ALJ found these were medically determinable impairments on the
(continued...)
-5-
There is no need for an extended discussion of the diagnoses of generalized
anxiety disorder, obsessive compulsive disorder, or personality disorder.
Marriage-and-family therapists, such as Mr. Smith and Ms. Schwinghammer, are
not acceptable medical sources; and only acceptable medical sources can provide
evidence to establish the existence of a medically determinable impairment.
20 C.F.R. §§ 404.1513(a) and 416.913(a). See also Frantz v. Astrue, 509 F.3d
1299, 1301 (10th Cir. 2007) (explaining that under § 1513(a), evidence from
an acceptable medical source is required to establish a medically determinable
impairment).
Ms. Crane argues that the ALJ should have considered Mr. Smith’s and
Ms. Schwinghammer’s reports because their opinions were bolstered by the
opinions of Drs. Daehnke and Murphy. To be sure, evidence or opinions from
non-medically acceptable sources are not always irrelevant. For example,
“evidence from other sources [may be used] to show the severity
of . . . impairment(s) and how it affects your ability to work.” 20 C.F.R.
§§ 404.1513(d) and 416.913(d). See also SSR 06-03P, 2006 WL 2329939, *2
(same). Both the regulations and ruling, however, are clear that information from
1
(...continued)
basis of evidence from medically acceptable sources, and included them in his
disability evaluation.
-6-
non-medically acceptable sources cannot establish a medically determinable
impairment. 2
Also cited as error is the ALJ’s failure to subpoena Mr. Smith’s and
Ms. Schwinghammer’s treatment notes. The agency suggests several reasons why
the ALJ’s failure to do so is not error, but we need address only one: their notes,
if any, are irrelevant because neither is an acceptable medical source whose
opinion could establish a medically determinable impairment.
As for the claim that Ms. Crane suffers from schizoaffective disorder, we
recognize that Dr. Spradlin is a medically acceptable source. But the ALJ
rejected for several reasons her diagnosis of schizoaffective disorder, finding it
insufficient to establish a medically determinable impairment. He wrote:
The claimant was diagnosed in December 2002 with a schizoaffective
disorder by a non-treating medical source who saw the claimant on
only one occasion. However, it is documented that claimant had an
acute psychosis at one point, which was possibly due to delirium.
Even so, the diagnosis of schizoaffective disorder . . . is not
supported by the evidence or by any test. In addition, the symptoms
justifying this diagnosis did not last 12 months, as required by the
regulations. The examining doctor recommended that the claimant
undergo a full psychological evaluation to fully assess her diagnosis.
The record does not substantiate that a full psychological evaluation
was done.
R. Vol. 2 at 34 (citations omitted). Ms. Crane does not point to any legal error or
the lack of substantial evidence to support the ALJ’s finding. Instead, her
2
Ms. Crane does not argue that the ALJ erred by failing to adopt the
diagnoses of anxiety made by Drs. Daehnke and Murphy.
-7-
argument is for a reweighing of the evidence, which we cannot do. “We review
only the sufficiency of the evidence, not its weight[.]” Oldham v. Astrue,
509 F.3d 1254, 1257 (10th Cir. 2007).
For similar reasons we disagree with Ms. Crane’s contention that the ALJ
erred by failing to discuss her global assessment of functioning (GAF) score of 41
when she met with Dr. Spradlin in 2002. 3 The ALJ is not required to discuss
every piece of evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
1996). To be sure, he must discuss the evidence supporting his decision, and in
addition he “must discuss the uncontroverted evidence he chooses not to rely
upon, as well as the significantly probative evidence he rejects.” Id. at 1010.
But Dr. Spradlin’s GAF evaluation was not uncontroverted; and the ALJ, for the
reasons given for his not accepting Dr. Spradlin’s diagnosis, did not need to find
her GAF scoring to be significantly probative. We also reject Ms. Crane’s
argument that the ALJ should have performed his own evaluation and
interpretation of the consultative psychological examination performed by
Dr. Schwartz in November 2004; an ALJ cannot substitute his own medical
opinion for that of a physician. See Hamlin v. Barnhart, 365 F.3d 1208, 1221
(10th Cir. 2004).
3
The GAF is a subjective determination using a scale of 1 to 100 of
“the clinician’s judgment of the individual’s overall level of functioning.”
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32
(Text Revision 4th ed. 2000). A GAF score of 41 indicates “[s]erious symptoms.”
Id. at 34.
-8-
Finally, to the extent that Ms. Crane contends that the ALJ did not
consider that she had an impairment from panic attacks, we note that the only
evidence concerning panic attacks came from Ms. Crane. She testified:
“[M]y chest hurts because my heart’s pounding really fast. . . . [S]ometimes
I feel really hot. I don’t know if it’s a hot flash or if it’s related to my panic
attacks. . . . I sometimes hyperventilate. . . . [The attacks happen] [o]nce a week,
maybe twice. . . . One [attack] lasted two days, [and some are gone] within
30 minutes to an hour.” R. Vol. 2 at 879-81. To establish the impairment of
panic attacks, however, Ms. Crane was required to provide “medical evidence
consisting of signs, symptoms, and laboratory findings, not only . . . [her]
statement of symptoms.” 20 C.F.R. §§ 404.1508 and 416.908.
B.
“At step three, the ALJ considers whether a claimant’s medically severe
impairments are equivalent to a condition listed in the appendix of the relevant
disability regulation.” Wall, 561 F.3d at 1052 (internal quotation marks omitted).
See also 20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii). Ms. Crane
contends that the ALJ erred at this step when he failed to “consider whether [her]
impairments were equivalent to [Listing 12.05C]” for mental retardation. Aplt.
Opening Br. at 14. “In order to satisfy listing 12.05, a claimant must meet the
requirements of that listing’s capsule definition as well as one of the four severity
prongs for mental retardation as listed in the regulations.” Wall, 561 F.3d at 1062
-9-
(internal quotations marks and alterations omitted). “The capsule definition for
listing 12.05 states: ‘Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.’” Id., quoting 20 C.F.R. Ch. III, Pt. 404,
Subpt. P, App. 1. Severity prong (C) of Listing 12.05, requires a showing of:
“a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation or function.” Wall, 561 F.3d at 1062 (internal quotation marks
omitted).
With respect to Listing 12.05(C), the Social Security Administration’s
Program Operations Manual System (POMS) provides:
[S]lightly higher IQ’s (e.g., 70-75) in the presence of other physical
or mental disorders that impose additional and significant work-
related limitation of function may support an equivalence
determination. It should be noted that generally the higher the IQ,
the less likely medical equivalence in combination with another
physical or mental impairment(s) can be found.
POMS No. DI 24515.056(D)(1)(c). This evaluation tool, however, is
used only when “the capsule definition of that impairment is satisfied.” Id.DI 24515.056(B)(1).
There was no evidence that Ms. Crane met the capsule definition for
Listing 12.05, which requires evidence “that a claimant exhibit subaverage
-10-
general intellectual functioning before the age of twenty-two.” Wall, 561 F.3d at
1062. Her lawyer never mentioned mental retardation, focusing instead on her
anxiety and panic attacks. Moreover, given that Ms. Crane had a GED and a
steady work history, which included jobs at the semi-skilled and skilled levels,
the ALJ understandably did not discuss this Listing.
What the evidence demonstrated and the ALJ found was that although
Ms. Crane appeared to have a learning disorder and dysthymia, her daily
“activities . . . are not significantly limited due to a mental impairment.”
R. Vol. 2 at 36. He noted the results of an IQ test administered on November 22,
2004, in which Ms. Crane obtained a verbal IQ score of 74, a performance IQ
of 95, and a full scale IQ of 82; and he cited the examiner’s findings and opinion
that Ms. Crane “could remember work location and procedures, understand and
follow simple directions, . . . and . . . had adequate attention, concentration and
short-term memory for simple tasks. It is substantiated that she functions well
at her job as a motel housekeeper.” Id. These findings are supported by
substantial evidence.
C.
Ms. Crane claims that the ALJ improperly assessed her credibility when he
found that although her “medically determinable impairments could reasonably be
expected to produce the alleged symptoms, . . . [her] statements concerning the
intensity, duration and limiting effects of these symptoms are not entirely
-11-
credible.” Id. at 35. The framework for evaluating the intensity and persistence
of symptoms and their functional effects is provided in 20 C.F.R. §§ 404.1529(c)
and 416.929(c). See also SSR 96-7P, 1996 WL 374186, at *1 (“When the
existence of a medically determinable physical or mental impairment(s) that could
reasonably be expected to produce the symptoms has been established, the
intensity, persistence, and functionally limiting effects of the symptoms must be
evaluated to determine the extent to which the symptoms affect the individual’s
ability to do basic work activities. This requires the adjudicator to make a
finding about the credibility of the individual’s statements about the symptom(s)
and its functional effects”). “Credibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when
supported by substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
1995) (internal quotation marks omitted). “[F]indings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion
in the guise of findings.” Id. (internal quotation marks omitted). To be sure, an
ALJ is required to do more than simply “recite[] the general factors he
considered . . . [without] refer[ring] to any specific evidence.” Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000). But “our opinion in Kepler does not
require a formalistic factor-by-factor recitation of the evidence. So long as the
ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility, the dictates of Kepler are satisfied.” Id.-12-
The ALJ’s analysis meets this test. He spent more than two pages
discussing factors such as Ms. Crane’s daily activities, her delay in seeking
mental health treatment, her work and physical activities, and the improvements
following her back surgery. The ALJ’s credibility findings are closely and
affirmatively linked to substantial evidence and may not be disturbed.
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
-13-