Best-Willie v. Astrue

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2013
Elisabeth A. Shumaker
Clerk of Court
MICHELLE BEST-WILLIE,
Plaintiff–Appellant,
v. No. 12-4069
(D.C. No. 1:10-CV-00176-PMW)
CAROLYN W. COLVIN, Acting (D. Utah)
Commissioner of the Social Security
Administration,*
Defendant–Appellee.
ORDER AND JUDGMENT**
Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
*
In accordance with Federal Rule of Appellate Procedure 43(c)(2), Carolyn
W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in this
action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Michelle Best-Willie appeals from an order of the district court affirming the
denial of her application for disability benefits under the Social Security Act.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I
In January 2007, Best-Willie began experiencing right-sided abdominal pain.
Over the next several months, she sought medical care from numerous providers and
underwent medical work-ups including CT scans of her abdomen and pelvis, upper
endoscopy, colonoscopy, capsule enteroscopy, urological testing, and multiple
chemistry panels. Her medical testing did not reveal abnormal findings and the
etiology of her abdominal pain could not be determined.
Best-Willie filed for disability benefits in June 2007. She claimed that due to
her abdominal pain, she could not sit for more than an hour, walk without assistance,
travel, or do any lifting. She was forty-three years old at the time of her application.
She has a bachelor’s degree and has worked in customer service technical support as
an end-user consultant, and previously as a photocopy machine operator.
In August 2007, the Commissioner denied Best-Willie’s application.
Best-Willie continued seeking treatment for her abdominal pain, which was
ultimately determined to have a psychological component. In February 2008, she
began treatment with a psychiatrist who diagnosed her with depression, anxiety, and
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a somatoform pain disorder1 and prescribed medication. Her application for benefits
was denied on reconsideration in August 2008.
In August 2009, an administrative law judge (“ALJ”) found Best-Willie not
disabled at step four of the controlling five-step sequential analysis. See Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (explaining five-step process for
evaluating claims for disability benefits). The ALJ confirmed that Best-Willie had
not worked since her alleged onset of disability, January 25, 2007, through her date
last insured, December 31, 2012. She found Best-Willie had the following severe
impairments: mild degenerative disc disease of the spine, morbid obesity, sleep
apnea, left carpal tunnel syndrome, asthma, major depression, generalized anxiety
disorder, and somatoform pain disorder. However, the ALJ concluded that these
impairments did not meet or equal the listings for presumptive disability.
The ALJ also found Best-Willie not credible and determined that her
impairments left her with a residual functional capacity (“RFC”) to perform light
work, as defined in 20 C.F.R. § 404.1567(b), with some postural limitations and
moderate mental limitations. Relying on the Dictionary of Occupational Titles and
1
A somatoform disorder exists when there are “[p]hysical symptoms for which
there are no demonstrable organic findings or known physiological mechanisms.”
20 C.F.R. 404, Subpt. P, App. 1, § 12.07. A somatoform pain disorder is indicated
where pain is the predominant complaint, warrants clinical attention, and causes
significant impairment in social or occupational functions. Am. Psychiatric Ass’n,
Diagnostic & Statistical Manual of Mental Disorders (DSM-IV) 485, 498 (4th ed.
2000).
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testimony of the vocational expert, the ALJ concluded at step four that Best-Willie
was not disabled because she could still perform her past relevant work as a
photocopy machine operator. Continuing to step five, the ALJ determined in the
alternative that Best-Willie possessed the RFC to perform other work in the national
economy.
Best-Willie’s request for review was denied by the Appeals Council, making
the ALJ’s decision the Commissioner’s final decision. Doyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003). The district court affirmed the Commissioner’s denial of
benefits, and Best-Willie appeals.
II
“In reviewing the [Commissioner’s] decision, we neither reweigh the evidence
nor substitute our judgment for that of the agency.” Branum v. Barnhart, 385 F.3d
1268, 1270 (10th Cir. 2004) (quotation omitted). Rather, “[w]e review the
Commissioner’s decision to determine whether the factual findings are supported by
substantial evidence in the record and whether the correct legal standards were
applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). “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
preponderance.” Lax, 489 F.3d at 1084 (citation and quotations omitted).
Best-Willie raises the following challenges to the Commissioner’s decision:
the ALJ erred (1) in rejecting the opinions of her treating physicians, Drs. Hall and
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Charlat; (2) in concluding that she did not meet Listing 12.06 (Anxiety Related
Disorders); (3) in evaluating the credibility of her complaints of pain; (4) in failing to
consider the lay witness statement of her husband; and (5) at steps four and five of
the sequential analysis.
A
Best-Willie challenges the ALJ’s evaluation of medical source opinions
offered by her treating physicians, Drs. Hall and Charlat. When analyzing the
opinion of a treating physician, the ALJ first considers “whether the opinion is well-
supported by medically acceptable clinical and laboratory diagnostic techniques” and
is consistent with the other substantial evidence in the record. Watkins, 350 F.3d
at 1300 (quotation omitted); see also 20 C.F.R. § 404.1527(c)(2). If so, the ALJ must
give the opinion “controlling weight.” Watkins, 350 F.3d at 1300. If the opinion is
not entitled to controlling weight, the ALJ should weigh the opinion considering the
six factors listed in 20 C.F.R. § 404.1527(c)(2)2 to determine “whether the opinion
2
These factors 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, 350 F.3d at 1301 (quotation omitted).
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should be rejected altogether or assigned some lesser weight.” Pisciotta v. Astrue,
500 F.3d 1074, 1077 (10th Cir. 2007). Finally, “[i]n all cases the regulations require
that the ALJ give good reasons in the notice of determination or opinion for the
weight that is given the treating physician’s opinion.” Doyal, 331 F.3d at 762(quotation omitted).
Dr. Hall was Best-Willie’s primary care physician who treated her for asthma,
diabetes, acid reflux, musculoskeletal pain, and right-sided abdominal pain from
January 2007 to December 2007.3 Dr. Hall’s March 2009 “Doctor’s Opinion” form
and RFC form noted that Best-Willie suffered from right lower quadrant pain,
fatigue, depression, and anxiety. He determined that Best-Willie’s pain symptoms
would interfere with her attention and concentration, and that she was incapable of
even low-stress jobs. He limited her to sitting for thirty minutes at a time, standing
to one hour at a time, sitting and standing/walking to less than two hours in an eight
hour work day, needing to walk every ten minutes for ten minutes at a time, needing
to shift postural positions, needing to keep her legs elevated up to two hours per day,
never lifting or carrying any weight, and rarely stooping, crouching, or climbing. He
also noted that due to her impairments, Best-Willie would miss more than four days
of work each month.
3
Other than these records, Dr. Hall wrote a “to whom it may concern letter” in
February 2009, opining that Best-Willie had diabetes and arthritis, and would benefit
from the use of a wheelchair and transportation accommodations.
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Best-Willie argues that the ALJ “summarily dismissed” Dr. Hall’s 2009
assessment of her functional limitations without providing sufficient support. We
disagree. Before evaluating Dr. Hall’s opinion, the ALJ thoroughly addressed the
medical evidence provided by other physicians who had examined Best-Willie for her
complaints of abdominal pain and other issues related to back and neck pain.
Referencing records from Drs. Foley, Batista, Hall, Durbin, Sadiq, and several other
clinics, the ALJ noted that these medical records revealed Best-Willie’s “ongoing
[medical] office visits and emergency room visits for abdominal and bowel issues, as
well as orthopedic and breathing issues.” Moreover, the ALJ observed that “despite
extensive workup, which has included multiple chemistry panels, multiple CBCs,
multiple CT scans, urologic evaluation, endoscopy, colonoscopy, small bowel
follow-through, capsule enteroscopy and IVP x-ray, all findings have been within
normal limits and the etiology of her abdominal pain is still unknown.” Our review
of the record reveals the same.
The ALJ also discussed issues concerning Best-Willie’s left wrist pain, neck
pain, back pain, and associated neurological issues and noted that diagnostic findings
and EMG studies were within normal limits. The ALJ considered an October 2007
report by Dr. Sadiq, a neurologist, who found that Best-Willie’s neck and back pain
were stable and she had mild external peripheral neuropathy. As pointed out by the
ALJ, there was no further evidence submitted after this report concerning treatment
for neck and back issues.
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In addition, the ALJ evaluated medical evidence regarding Best-Willie’s
mental impairments. She discussed Dr. Swaner’s February 2008 psychological
consultative examination, in which Dr. Swaner diagnosed Best-Willie with an
adjustment disorder with depressed mood, a pain disorder associated with both
psychological factors and a general medical condition, and assessed a global
assessment function of sixty-five, which the ALJ stated “indicate[d] no more than
mild symptoms/impairment.”4 The ALJ also discussed Best-Willie’s psychiatric
treatment beginning in February 2008 with Dr. Charlat. Dr. Charlat’s records
revealed that by April 2008 Best-Willie experienced with medication an alleviation
of her depressed mood, good suppression of her anxiety and somatoform pain
disorder, and good prognosis for returning to regular employment. Dr. Charlat’s
November 2008 treatment note, the last treatment note for psychiatric care in the
record, was essentially the same.
As to Dr. Hall, the ALJ stated that his opinions concerning Best-Willie’s
“extremely limited residual functional capacity” and inability to work were not
entitled to controlling weight because the opinions were not supported by medically
acceptable clinical and diagnostic techniques. Moreover, the ALJ found Dr. Hall’s
opinion inconsistent with medical evidence in the record as well as with his reports
4
The ALJ’s assessment is correct. Under DSM-IV, a global assessment
function of sixty-five indicates “some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or school functioning . . . , but
generally functioning pretty well, has some meaningful interpersonal relationships.”
DSM-IV at 34.
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because his examinations and diagnostic testing were within normal limits. Thus the
ALJ afforded Dr. Hall’s opinion “little weight.”
Nevertheless, Best-Willie argues the ALJ did not “specifically identify what
other evidence allegedly contradicted Dr. Hall’s assessed limitations.” We discern
no error. As discussed above, the ALJ thoroughly discussed the medical evidence in
the record, which demonstrated that there was “very little objective evidence to
support claimant’s very severe and extreme alleged functional limitations due to her
physical and mental impairments.” Although there was not a contemporaneous
discussion of this evidence in discounting Dr. Hall’s opinion, in reading the ALJ’s
decision as a whole, it is evident Dr. Hall’s opinion is inconsistent with the record.
Best-Willie also argues that the ALJ summarily rejected Dr. Charlat’s opinion
without sufficient support. Again, we disagree. The ALJ stated that Dr. Charlat’s
opinions concerning Best-Willie’s “extreme mental limitations in maintaining
concentration, persistence and pace” and his opinion that she would miss more than
four days per month due to mental impairments were not entitled to controlling
weight. The ALJ found Dr. Charlat’s opinion unsupported by medically acceptable
clinical and diagnostic techniques and inconsistent with the record. For example, Dr.
Charlat’s June 5, 2008 RFC evaluation was inconsistent with his treatment note on
June 6, the next day, in which he concluded that with medication Best-Willie had
“alleviation of her depression, suppression of her generalized anxiety, suppression of
her somatoform disorder [and that the prognosis was good for] being able to return to
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regular employment.” In general, the ALJ stated that treatment notes and
examinations “show a degree of limitation but not to the point suggested by Dr.
Charlat.” The record demonstrates that Best-Willie’s somatoform pain disorder was
suppressed with medication, and the ALJ appropriately considered this in discounting
Dr. Charlat’s opinion.
B
Best-Willie also claims error at step three. Specifically, she asserts that the
ALJ failed to conclude she met Listing 12.06 (Anxiety Related Disorders) because
the ALJ “failed to acknowledge” Dr. Charlat’s opinion that Best-Willie had a
complete inability to function independently outside of her home.
“At step three, the determination is made whether the impairment is equivalent
to one of a number of listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. If the impairment is listed and thus
conclusively presumed to be disabling, the claimant is entitled to benefits.” Lax,
489 F.3d at 1085 (citations, quotations, and alteration omitted). A claimant will only
be presumed disabled if an impairment, or a combination of impairments, meets or
equals all the requirements of a listing. Sullivan v. Zebley, 493 U.S. 521, 530-31
(1990). Further, a claimant has the burden to present evidence establishing her
impairments meet or equal listed impairments. Fischer-Ross v. Barnhart, 431 F.3d
729, 733 (10th Cir. 2005).
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Best-Willie was diagnosed with generalized anxiety disorder, which is
compared to Anxiety Related Disorders, the impairment listed under 12.06. For the
ALJ to have found that Best-Willie’s mental limitation met the required level of
severity under 12.06, Best-Willie had to satisfy requirements under 12.06(A) and
12.06(B),5 or alternatively, 12.06(A) and 12.06(C). See 20 C.F.R. 404, Subpt. P,
App. 1, § 12.06. Under 12.06(C), paragraph C, Best-Willie was required to show that
the mental limitation “[r]esult[s] in complete inability to function independently
outside the area of one’s home.” § 12.06(C). The ALJ determined Best-Willie did
not meet these criteria.
We reject Best-Willie’s claims that the ALJ failed to acknowledge Dr.
Charlat’s opinion that she could not function outside of her home, and that the ALJ
provided no explanation for her determination that paragraph C was not satisfied.
Although the ALJ did not expressly address the opinion of Dr. Charlat in her step
three analysis, the ALJ’s findings in other parts of the decision support her
determination that Best-Willie is not presumptively disabled at step three. See
Fischer-Ross, 431 F.3d at 733 (“[A]n ALJ’s findings at other steps of the sequential
5
Under 12.06(B), Best-Willie’s limitation had to result in at least two of the
following: (1) marked restriction of activities of daily living; or (2) marked
difficulties in maintaining social functioning; or (3) marked difficulties in
maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. See 20 C.F.R. 404, Subpt. P, App. 1,
§ 12.06(B). The ALJ concluded Best-Willie did not meet the criteria of § 12.06(B).
Best-Willie does not argue on appeal that she meets these criteria.
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process may provide a proper basis for upholding a step three conclusion that a
claimant’s impairments do not meet or equal any listed impairment.”).
For example, in determining Best-Willie’s RFC at step four, the ALJ
considered medical opinion evidence, including Dr. Charlat’s determination that
Best-Willie had a complete inability to function independently outside of her home.
Though the ALJ did not expressly state this opinion in her decision, she did state that
she considered all of the evidence in the record and the medical evidence in
accordance with the regulations. As is our general practice, we take her at her word.
See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). Importantly, the
district court confirmed, as we have above, that the ALJ did not err in discounting
Dr. Charlat’s opinions concerning Best-Willie’s alleged extreme mental limitations.
See Fischer-Ross, 431 F.3d at 733-34 (noting harmless error applies when confirmed
or unchallenged findings made elsewhere in the ALJ’s decision confirm the step three
determination under review).
Further, in evaluating Best-Willie’s RFC, the ALJ considered Dr. Swaner’s
February 2008 psychological consultative examination. Best-Willie admitted that
depression is not a primary debilitator, and Dr. Swaner found that Best-Willie
exhibited normal social functioning skills and attention skills. Moreover, the ALJ
addressed Dr. Charlat’s medical report that Best-Willie’s mental impairments,
including her generalized anxiety, were controlled by medication. In reviewing the
ALJ’s analysis at other steps of the sequential analysis, we conclude the ALJ
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properly determined that Best-Willie’s generalized anxiety did not meet or equal a
listed impairment. Id. at 733.
Best-Willie nevertheless contends that the ALJ should have considered
whether the combination of her impairments equaled any of the listed impairments,
and obtained an updated opinion from a medical expert in determining whether her
mental impairments were equivalent in severity to a listed impairment. She argues
this was necessary because there was new medical evidence submitted, specifically
the assessments by Drs. Hall and Charlat, after the state agency physicians’
consultations had taken place.6 We discern no error. In March 2008, a state agency
psychologist reviewed the medical evidence, completed a Psychiatric Review
Technique Form, and concluded that Best-Willie’s mental impairments were not
severe and did not equal a listing. The ALJ did not err in relying on this evaluation.
See SSR 96-6p, 1996 WL 374180, at *1-3; see also 20 C.F.R. § 404.1526(c).
Contrary to Best-Willie’s claim, an ALJ is only required to obtain an updated
medical opinion from a medical expert “when additional medical evidence is received
that in the opinion of the [ALJ] . . . may change the State agency . . . psychological
6
Best-Willie does not expressly state what “assessments” by Drs. Hall and
Charlat were not in the record at the time of the state agency physicians’ review. We
assume, however, that she is referring to Dr. Hall’s February 2009 assessment, and
treatment records from Dr. Charlat between February 2008 and November 2008.
Regarding Dr. Charlat, the record contains a total of five treatment notes:
February 22, 2008; April 4, 2008; June 6, 2008; August 8, 2008; and
November 14, 2008.
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consultant’s finding that the impairment is not equivalent in severity to any
impairment in the Listing of Impairments.” SSR 96-6p, 1996 WL 374180, at *3-4.
C
Best-Willie next challenges the ALJ’s credibility determination with respect to
her subjective complaints of pain. “Credibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when
supported by substantial evidence.” Hackett, 395 F.3d at 1173 (quotation omitted).
“However, findings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Id.(quotation and alteration omitted).
“To be disabling, pain must be so severe, by itself or in conjunction with other
impairments, as to preclude any substantial gainful employment.” Talley v. Sullivan,
908 F.2d 585, 587 (10th Cir. 1990) (quotation omitted). “[A claimant’s] statements
regarding the intensity and persistence of the pain must be consistent with the
medical findings and signs.” Gossett v. Bowen, 862 F.2d 802, 806 (10th Cir. 1988).
In evaluating the credibility of a claimant’s statements regarding pain, an ALJ should
consider an individual’s daily activities; the location, duration, frequency, and
intensity of the pain; the dosage and effectiveness of medications taken to alleviate
pain; and any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms. Hamlin v. Barnhart, 365 F.3d 1208, 1220
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(10th Cir. 2004); see also Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir.
1993) (listing other factors such as frequency of medical contacts).
The ALJ found the level of pain severity claimed by Best-Willie unpersuasive.
She determined that Best-Willie’s allegations of pain “far exceed any acceptable,
objective medical evidence of a physical source for the degree of impairments
alleged.” Recognizing that Best-Willie has a history of abdominal pain and
orthopedic issues but that all diagnostic testing had been within normal limits, the
ALJ noted that Best-Willie’s physical and mental impairments were treated with
conservative care, required no surgery or extended hospitalization, and required little
physical therapy. The ALJ considered that the pain associated with Best-Willie’s
mental impairments was controlled with medication. See Hamlin, 365 F.3d at 1220(noting that in evaluating credibility, ALJ may consider effectiveness of medications
taken to alleviate pain). The ALJ also noted that Best-Willie received no recent
treatment for her physical and mental impairments.7
Further, the ALJ properly considered that Best-Willie’s daily activities were
inconsistent with her allegations of severe pain. Best-Willie reported that she could
care for her personal needs, do some household chores, handle her finances, watch
television, and spend time writing her family’s genealogical history. Although an
7
In evaluating the documentary medical evidence, the ALJ had previously
noted that Best-Willie’s last treatment record for physical impairments was in
October 2007 and that the last treatment record for mental health care was November
2008.
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ALJ may not rely on the performance of minimal daily activities alone as substantial
evidence that a claimant does not suffer disabling pain, see Thompson, 987 F.2d
at 1490, the ALJ appropriately considered several factors in making her adverse
credibility determination and tied that finding to specific evidence in the record.
Finally, we reject Best-Willie’s claim that the ALJ did not address her obesity.
The ALJ considered Best-Willie’s obesity impairment but concluded that complaints
of disability due to obesity were not credible because Best-Willie repeatedly ignored
medical advice to lose weight.
After examining the record as a whole, we conclude that the ALJ’s negative
credibility finding is linked to substantial evidence and thus find no error. See
Hackett, 395 F.3d at 1173.
D
Best-Willie next challenges the ALJ’s failure to consider a lay witness
statement, a letter from her husband. Mr. Willie’s letter discussed his wife’s inability
to sit for more than two hours at a time before needing bedrest, lack of concentration,
and inability to travel certain distances due to pain. Mr. Willie’s letter is cumulative
of Best-Willie’s testimony concerning her limitations and reports of pain, which the
ALJ discussed and found not credible. We conclude that although the ALJ’s decision
does not expressly address this lay witness evidence, any error in failing to do so is
harmless because “the same evidence that the ALJ referred to in discrediting [the
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claimant’s] claims also discredits [the lay witness’s] claims.” Buckner v. Astrue,
646 F.3d 549, 560 (8th Cir. 2011).
E
Best-Willie also alleges errors regarding step four of the sequential analysis.
Step four is comprised of three phases.
In the first phase, the ALJ must evaluate a claimant’s physical and
mental residual functional capacity (RFC), . . . and in the second phase,
he must determine the physical and mental demands of the claimant’s
past relevant work. . . . In the final phase, the ALJ determines whether
the claimant has the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase one. . . .
At each of these phases, the ALJ must make specific findings.
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citation and quotation
omitted). Those findings must be supported by substantial evidence. See Watkins,
350 F.3d at 1299.
Best-Willie first claims error regarding the ALJ’s RFC assessment. “In
determining a claimant’s physical abilities, the ALJ should . . . assess the nature and
extent of the claimant’s physical limitations and then determine the claimant’s
residual functional capacity for work activity on a regular and continuing basis.”
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (quotation and alteration
omitted). This involves consideration of the claimant’s “impairment(s), and any
related symptoms . . . [that] may cause physical and mental limitations that affect
what [the claimant] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).
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The ALJ concluded that Best-Willie had a RFC to perform light work as
defined in 20 C.F.R. § 404.1567(b),8 with an option to sit/stand at will; postural
limitations restricting her to only occasionally climbing ramps or stairs, balancing,
kneeling, stooping, and crouching, and never crawling or climbing ladders, ropes, or
scaffolding; fingering with the left hand no more than frequently; avoiding moderate
exposure to hazards such as machinery and heights; and moderate limitations in her
ability to maintain extended attention and concentration and respond appropriately to
work pressures.
In conclusory fashion, Best-Willie claims that the ALJ did not include “many
of the limitations” identified by her treating physicians, Drs. Hall and Charlat, in her
RFC assessment. But Best-Willie does not state what limitations should have been
included. As discussed above, the ALJ properly considered the opinions of Drs. Hall
and Charlat and accorded them little weight because they were unsupported by the
8
Light work is defined in the regulations as follows:
[L]ifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity
or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
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medical evidence. Having reasonably discounted the opinions of Drs. Hall and
Charlat, the ALJ did not err in failing to include additional limitations in her RFC
assessment. And based on our review of the record, we conclude there is substantial
evidence to support the ALJ’s RFC assessment for light work.
Best-Willie next argues that the ALJ erred by failing to make required findings
regarding the physical and mental demands of her past relevant work. We disagree.
At phase two of the step four analysis, “the ALJ must make findings regarding the
physical and mental demands of the claimant’s past relevant work.” Winfrey,
92 F.3d at 1024. To make such findings, an ALJ must obtain adequate “factual
information about those work demands which have a bearing on the medically
established limitations.” SSR 82–62, 1982 WL 31386, at *3 (1982). Such
information regarding work demands may be obtained from the claimant herself, her
employer, or another informed source. See id. The ALJ here did this.
As a preliminary matter, we reject Best-Willie’s assertion that the ALJ erred
by concluding that her past employment as a photocopy machine operator constituted
past relevant work without evidentiary support or citing support. Best-Willie
testified to her work “doing production printing jobs” at a print copy center and also
submitted paperwork confirming this work. The record supports the ALJ’s
conclusion, and the ALJ’s failure to expressly cite evidence in support does not
constitute error. The ALJ stated that she carefully considered all evidence in the
record and we take her at her word. See Hackett, 395 F.3d at 1173.
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The ALJ also requested information from the vocational expert regarding Best-
Willie’s past relevant work. The expert testified that Best-Willie’s past work as a
technical consultant was classified as a customer complaint clerk which was a
sedentary job, and skilled at a specific vocational preparation (“SVP”) level of five,
or as an end user consultant which was a sedentary job, and skilled at SVP seven.
The expert further testified that Best-Willie’s job as a photocopy machine operator
was medium in demand as she performed it. But relying on the Dictionary of
Occupational Titles, the expert testified that the job of photocopy machine operator
as generally performed is classified as light in demand and unskilled. Unskilled work
is “work which needs little or no judgment to do simple duties . . . [which] may or
may not require considerable strength . . . and [requires] little specific vocational
preparation and judgment.” 20 C.F.R. § 404.1568(a). Accordingly, the ALJ obtained
information concerning the physical and mental demands of Best-Willie’s past
relevant work and appropriately relied on the vocational expert’s testimony in her
decision. See Doyal, 331 F.3d at 761 (finding no Winfrey error where ALJ relied on
vocational expert’s testimony in support of ALJ’s phase two and phase three
findings).
Finally, Best-Willie asserts that the ALJ erroneously relied on the expert’s
testimony to determine, without sufficient analysis, that the demands of her previous
jobs were compatible with her RFC. At the hearing, the ALJ posed a hypothetical to
the expert, including Best-Willie’s postural limitations and mental limitations, and
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asked whether such an individual could perform Best-Willie’s past relevant work.
The expert responded in the affirmative. In concluding that Best-Willie could
perform that past relevant work, the ALJ notes the expert’s testimony. We perceive
nothing improper with the ALJ’s analysis.
Moreover, any legal error at step four is harmless in view of the ALJ’s
alternate finding at step five that other jobs existed in significant numbers in the
national economy that Best-Willie could perform given her RFC for light work.
See Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994) (affirming step-five
finding despite alleged errors at step four). Despite Best-Willie’s argument to the
contrary, we conclude that the ALJ’s step-five evaluation was proper. Best-Willie’s
only claim of error is that the ALJ’s hypothetical regarding other jobs available in the
national economy was incomplete because it did not include the limitations assessed
by Drs. Hall and Charlat. But the ALJ’s hypothetical needed only to include those
limitations “borne out by the evidentiary record.” Evans v. Chater, 55 F.3d 530, 532
(10th Cir. 1995). And as we have already confirmed, the ALJ did not err in
discounting the opinions of Drs. Hall and Charlat.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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