Thompson v. Colvin

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 3, 2014
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
TERESA D. THOMPSON,
Plaintiff - Appellant,
v. No. 13-5064
(D.C. No. 4:11-CV-00730-FHM)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.
Teresa D. Thompson appeals from the denial of her application for
supplemental security income (“SSI”) 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 agreed
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Thompson filed for SSI benefits alleging disability due to fibromyalgia,
allergies, depression, anxiety, headaches, and problems with her knees, back,
shoulder, hips, thighs, and neck. She requested and received a hearing before an
administrative law judge (“ALJ”) at which she was represented by counsel.
Thompson and a vocational expert (“VE”) testified. The ALJ found that Thompson
had severe impairments consisting of “problems with shortness of breath, due to
allergies, knees, back, shoulder, neck, headaches, hips, thighs, and depression and
anxiety.” He then determined that Thompson could not perform her past relevant
work, but that she could perform other jobs existing in substantial numbers in the
national economy. The ALJ found that Thompson had the residual functional
capacity (“RFC”) to perform a limited range of light and sedentary exertional work as
defined in the applicable regulations. He determined that she was “able to perform
simple, repetitive and routine tasks and [was] slightly limited in reference to contact
with the general public, co-workers and supervisors.” Consequently, the ALJ denied
benefits at step five of the five-step sequence for determining disability. See Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Appeals Council denied review
and the district court affirmed.1
1
The parties consented to proceed before a magistrate judge in the district
court.
-2-
II
We review the Commissioner’s decision de novo, Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005), determining “whether it is free from legal error
and supported by substantial evidence,” Krauser v. Astrue, 638 F.3d 1324, 1326
(10th Cir. 2011). Thompson advances three arguments on appeal: (1) the ALJ failed
to conduct the required step-three analysis of her mental impairments, (2) the ALJ
did not evaluate properly the medical-source evidence, and (3) the ALJ did not
perform a proper determination at step five.
A
Thompson argues that once the ALJ found at step two that she had the severe
mental impairments of depression and anxiety, he was required at step three to
evaluate those issues under the Listing of Impairments. See 20 C.F.R. Pt. 404, Subpt.
P, App. 1. “When there is evidence of a mental impairment that allegedly prevents a
claimant from working, the ALJ must follow the procedure for evaluating mental
impairments set forth in 20 C.F.R. § [416.920a] and the Listing of Impairments and
document the procedure accordingly.” Carpenter v. Astrue, 537 F.3d 1264, 1268
(10th Cir. 2008) (quotation omitted). This procedure entails first evaluating the
claimant’s symptoms, signs, and laboratory findings. See 20 C.F.R. § 416.920a(b).
Then the degree of functional limitation is rated in four broad areas, id.
§ 416.920a(c), which leads to a determination of the severity of the claimant’s mental
-3-
impairments, id. § 416.920a(d). The ALJ must “document application of the
technique in the decision.” Carpenter, 537 F.3d at 1268 (quotation omitted).
Thompson does not point to evidence demonstrating that her mental
impairments met a listing; rather, she contends that without documentation of the
special technique, the ALJ’s decision process is unreviewable. She also argues that
her mental limitations should have been included in the hypothetical questions posed
to the VE. She relies on Dr. Gordon’s report describing her mental limitations.
The ALJ’s decision does not document the required technique. Nevertheless,
the error was harmless because the ALJ’s findings later in his analysis established
that Thompson’s mental impairments were not disabling. See Fischer-Ross, 431 F.3d
at 733-35 (remand to agency not required “when confirmed or unchallenged findings
made elsewhere in the ALJ’s decision confirm the step three determination under
review” and “[n]o reasonable factfinder could conclude otherwise”).
In formulating Thompson’s RFC, the ALJ adopted the mental limitations upon
which Thompson relies on appeal. The ALJ found that Thompson had “‘mild’
limitation in [her] abilit[ies] to carry out simple instructions, make judgments on
simple work-related decisions, and interact appropriately with the general public,
co-workers and supervisors.” She had “‘moderate’ limitation in [her] abilit[ies] to
make judgments on complex work-related decisions and respond appropriately to
usual work situations and to changes in a routine work setting; and ‘marked’
limitation in [her] ability to carry out complex instructions.” Accordingly, the ALJ
-4-
formulated an RFC that took these limitations into account by restricting her to jobs
requiring “simple, repetitive and routine tasks and . . . limited . . . contact with the
general public, co-workers and supervisors.” If “we can follow the adjudicator’s
reasoning in conducting our review, and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ’s reasoning do not dictate
reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
B
Thompson argues that the ALJ failed to give sufficient weight to the opinion
of her primary caregiver, Robin Endres, an Advanced Registered Nurse Practitioner.
She also claims that he failed to weigh the opinions of the consultative examiners and
the non-examining, non-treating state agency reviewers. Nurse Endres found that
Thompson tested positive for 12 of 18 tender points on a fibromyalgia test on
July 22, 2009. On February 15, 2010, she completed a form indicating that
Thompson’s limitations precluded her from working. The ALJ noted that, as a nurse,
Endres was not an “acceptable medical source.” See 20 C.F.R. § 416.913(a) (listing
acceptable medical sources). The ALJ also discussed the medical opinions of
Dr. Gourd and Dr. Reddy, who are acceptable medical sources. Dr. Gourd examined
Thompson on November 22, 2008, and found 2 out of 18 fibromyalgia tender points.
Dr. Reddy examined her on April 12, 2010, and completed a Medical Source
-5-
Statement of Ability to do Work-Related Activities (Physical). Dr. Reddy indicated
8 of 18 fibromyalgia tender points.2
After considering Nurse Endres’ opinion as required by 20 C.F.R.
§ 416.927(b), the ALJ properly afforded it no weight after observing that it was
inconsistent with the opinions of the acceptable medical sources. See
Keyes-Zachary, 695 F.3d at 1164 (ALJ is justified in relying on an opinion from an
acceptable medical source over that from a nonacceptable medical source).
Thompson also alleges that the ALJ did not weigh the opinions of the
consultative examiners, Dr. Gourd and Dr. Reddy. Although “[i]t is the ALJ’s duty
to give consideration to all the medical opinions in the record [and to] discuss the
weight he assigns to such opinions,” id. at 1161, the failure to do so can be harmless,
id. at 1163. If the ALJ’s RFC is “generally consistent” with the findings in a medical
opinion, or if the RFC is “more favorable” to the claimant than the opinion’s
findings, then “[t]here is no reason to believe that a further analysis or weighing of
[the] opinion could advance [the claimant’s] claim of disability.” Id. In such a case,
the error is harmless because the claimant cannot show prejudice stemming from the
ALJ’s failure to give greater weight to the opinion.
2
Thompson also points to a score of 12 of 18 tender points for fibromyalgia
found by Jean Barnard, M.D., which the ALJ did not discuss. But Dr. Barnard’s
findings were dated December 2, 2004, and in subsequent reports she noted only
“[p]ossible” or “[q]uestionable” fibromyalgia. Dr. Barnard’s later reports were
consistent with the findings of Dr. Gourd and Dr. Reddy.
-6-
The Commissioner concedes that the ALJ should have assigned an explicit
weight to the opinions of Dr. Gourd and Dr. Reddy but contends that the error was
harmless. We agree. The ALJ’s decision summarizes the opinions of Dr. Gourd and
Dr. Reddy, and the RFC includes most of the limitations in those opinions. Although
Thompson suggests that the ALJ should have weighted the favorable medical
evidence more heavily, “we will not reweigh the evidence or substitute our judgment
for the Commissioner’s.” Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008)
(quotation omitted).
Thompson next asserts error in the ALJ’s failure to discuss and weigh the
reports of the state agency reviewers, Dr. Kampschaefer, Dr. Woodcock,
Dr. Varghese, and Dr. Rees. Although she apparently concedes that these reports do
not provide evidence of disability, she argues that a remand is necessary because they
do not support the findings by the second physical consultative examiner and the
mental consultative examiner. “In conducting our review, we should, indeed must,
exercise common sense.” Keyes-Zachary, 695 F.3d at 1166. A remand for the ALJ
to weigh opinions that admittedly do not support a finding of disability would be
futile.
C
Thompson’s final argument is that the hypothetical questions posed to the VE
did not include all of her impairments, and thus could not support a step-five
determination that she was able to work. She challenges the findings concerning her
-7-
abilities to stand/walk and reach, contending that the medical evidence showed that
she could stand/walk for only four hours and had limited reaching ability. She
further claims that the hypothetical questions did not include all of her mental
limitations.
Thompson argues that she cannot do the “light” exertional jobs of mail clerk
and sorter because “light” work requires six hours of standing or walking during an
eight-hour workday. See SSR 83-10, 1983 WL 31251, at *6 (“[T]he full range of
light work requires standing or walking, off and on, for a total of approximately 6
hours of an 8-hour workday.”). The hypothetical question and RFC assessment
included an ability to stand/walk for six hours in an eight-hour workday at
thirty-minute intervals. Thompson relies on Dr. Reddy’s assessment that she could
stand/walk for only four hours. But Dr. Reddy’s assessment was based only on
Thompson’s complaints of “low back pain,” not on any particular medical or clinical
findings.
We recognize that the ALJ assessed back problems as a severe impairment at
step two. But a step-two finding of a severe impairment
does not require the ALJ to find at step five that the claimant did not
have the residual functional capacity to do any work. After finding
severe impairments, the ALJ still had the task of determining the extent
to which those impairments, whether [physical] or mental impairments
or both, restricted her ability to work.
Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007). Thompson’s report to Dr.
Reddy of disabling back pain appears to be at odds with her testimony that she could
-8-
perform various household tasks, including laundry, dusting, some cooking, and
making her bed, although she could not sweep the floor. She was also able to drive a
car for short trips.
Moreover, Dr. Reddy’s examination showed no abnormal results, except for
“complaints of pain to palpation in the cervical paraspinals, between the shoulder
blades, both shoulders, posterior scalp and anterior thighs.” Specifically, Dr. Reddy
found that Thompson had full strength in upper and lower extremities, normal
reflexes, no signs of thrombosis, normal nerve functioning, and no signs of abnormal
carpal tunnel. In addition, Dr. Reddy assessed Thompson’s ability to stand/walk
continuously, while the ALJ specified standing/walking only at thirty-minute
intervals.
The ALJ was not required to adopt Dr. Reddy’s restrictions on standing and
walking in formulating Thompson’s RFC. “The ALJ, not a physician, is charged
with determining a claimant’s RFC from the medical record.” Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012) (quotation omitted); see also 29 C.F.R.
§ 416.946(c) (ALJ is responsible for assessing RFC). Considering Dr. Reddy’s
statement that he limited Thompson’s ability to stand and walk based on her
allegations of pain, rather than on clinical findings, we discern no harmful error.
Thompson further asserts that none of the jobs identified by the VE as
appropriate for her could accommodate the reaching restrictions stated by Dr. Reddy.
Dr. Reddy indicated that Thompson could occasionally reach overhead with her right
-9-
hand and that she could perform all other right-handed reaching occasionally.
Dr. Reddy opined that she could reach overhead frequently with her left hand and
perform all other left-handed reaching occasionally. The ALJ’s hypothetical question
included an ability to occasionally reach overhead, a limitation consistent with
Dr. Reddy’s report. The VE identified several jobs existing in significant numbers in
the regional and national economies within the hypothetical worker’s abilities: mail
clerk, sorting jobs, inspector/checker, and assembly jobs (with a fifty percent
reduction due to the stated limitations). The ALJ confirmed with the VE that the jobs
identified did not deviate from the job descriptions in the Dictionary of Occupational
Titles (“DOT”).
On appeal, Thompson has listed numerous DOT job numbers associated with
unskilled light sorter jobs, claiming that all of them require reaching that Dr. Reddy
said she cannot do. This court will not evaluate in the first instance whether a
claimant is able to perform specific jobs. See, e.g., Raymond v. Astrue, 621 F.3d
1269, 1271 (10th Cir. 2009) (appellate court’s review of agency’s factual findings is
limited to whether they are supported by substantial evidence in the record). More to
the point, the VE testified that the jobs he identified were consistent with a
hypothetical person with Thompson’s impairments and the DOT. See Poppa v.
Astrue, 569 F.3d 1167, 1173-74 (10th Cir. 2009) (ALJ must inquire about and
resolve any conflicts between the VE’s testimony and a DOT job description).
- 10 -
Finally, Thompson asserts that the hypothetical question did not include the
mental limitations noted by Dr. Gordon. An ALJ’s hypothetical questions to the VE
“must include all (and only) those impairments borne out by the evidentiary record.”
Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). The ALJ’s hypothetical
questions took into account Dr. Gordon’s recommended limitations on contact with
the public, coworkers, and supervisors. Accordingly, we find no error in the ALJ’s
formulation of the hypothetical questions.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
- 11 -