Sullivan v. Astrue

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 13, 2013
Elisabeth A. Shumaker
Clerk of Court
MARGARET SULLIVAN,
Plaintiff-Appellant,
v. No. 12-5147
(D.C. No. 4:11-CV-00266-PJC)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,*
Defendant-Appellee.
ORDER AND JUDGMENT**
Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
Margaret Sullivan appeals the district court’s order affirming the
Commissioner’s denial of her application for Social Security Disability Insurance
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
benefits. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291and affirm.
I.
Ms. Sullivan was born in 1969 and sought disability benefits in 2007 for
memory issues, blood pressure, bipolar disorder, anxiety, depression, and thyroid
issues. The Magistrate Judge’s decision thoroughly describes the medical evidence
in the record, thus we do not repeat it here.
Following a hearing, the administrative law judge (ALJ) denied benefits at
step five of the sequential evaluation process. See Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (describing five-step process). At steps one through three, the
ALJ found that Ms. Sullivan had severe impairments of borderline personality
disorder, depression, prior knee surgery, and carpal tunnel syndrome, but that her
impairments did not meet the criteria to be considered presumptively disabled. The
ALJ then determined that Ms. Sullivan had the residual functional capacity (RFC) to
perform sedentary work, limited to simple tasks under routine supervision, with no
contact with the public on a continuous basis. Given her RFC, the ALJ determined at
step four that Ms. Sullivan was unable to return to any of her past work but, at step
five, could perform work that is available in significant numbers in the national
economy, such as a trimmer, clerical mailer, or sorter. Thus, the ALJ ruled
Ms. Sullivan was not disabled.
-2-
The Appeals Council denied review, and a Magistrate Judge, presiding
pursuant to 28 U.S.C. § 636(c)(1), affirmed the Commissioner’s decision.
“We review the Commissioner’s decision to determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (internal quotation marks omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation marks omitted).
On appeal, Ms. Sullivan first contends the ALJ failed to correctly evaluate the
medical source evidence. Second, she contends the ALJ failed to support his
credibility determination with respect to her mental impairments. We agree with the
Magistrate Judge that Ms. Sullivan did not sufficiently develop this second issue in
the district court, and that it was therefore waived. See Chambers v. Barnhart,
389 F.3d 1139, 1142 (10th Cir. 2004) (“The scope of our review . . . is limited to the
issues the claimant properly preserves in the district court and adequately presents on
appeal.” (alteration and internal quotation marks omitted)); see also Wall v. Astrue,
561 F.3d 1048, 1065, 1066 (10th Cir. 2009) (declining to consider issues that were
not supported with any developed argumentation before the district court). As to the
remaining medical source issue, upon reviewing the record and the relevant legal
authorities, we perceive no reversible error.
-3-
II.
“An ALJ must evaluate every medical opinion in the record, see
20 C.F.R. § 404.1527(d), although the weight given each opinion will vary according
to the relationship between the disability claimant and the medical professional.”
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). Additionally, “[i]f the
RFC assessment conflicts with an opinion from a medical source, the [ALJ] must
explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July
2, 1996).
Ms. Sullivan first argues that the ALJ incorrectly considered the consultative
medical evaluation of Dr. Hansen, a neuropsychologist. Dr. Hansen observed that
Ms. Sullivan’s concentration, persistence and pace were within normal limits; she
exhibited depression; she had poor emotional insight; she described difficulty relating
to others; and she appeared to be easily overwhelmed by stress. He reported that she
scored 28 out of 30 on the Folstein Mini Mental Evaluation, which indicates normal
cognition. His impression was that Ms. Sullivan had probable borderline personality
disorder with difficulty stabilizing her mood. He opined that “[i]t is likely she will
experience difficulty working within the majority of competitive environments,” but
that “[s]he was informed about the availability of vocational rehabilitation services
and the need to locate work within a highly structured and supportive setting if
possible.” Aplt. App. Vol. III, at 426. Dr. Hansen concluded that Ms. Sullivan’s
“[g]ross mental status functioning is within normal limits,” id., and that ‘[h]er
-4-
primary challenge to employability would appear to be her inability to tolerate stress
due to triggering her borderline characteristics with volatile mood and exacerbation
of depression.” Id. at 426-27.
The ALJ wrote three paragraphs summarizing Dr. Hansen’s opinions.
In reaching his RFC determination, the ALJ explained that he gave significant weight
to Dr. Hansen’s opinion that Ms. Sullivan’s gross mental status was within normal
limits but less weight to his opinion that she would have difficulty working within
a majority of competitive environments. As noted, the ALJ’s RFC limited
Ms. Sullivan to simple tasks under routine supervision, with no regular contact with
the public.
But Ms. Sullivan argues the ALJ’s evaluation was flawed because he did not
discuss Dr. Hansen’s belief that she needed to work in a highly structured and
supportive environment and was unable to tolerate stress. Ms. Sullivan contends
these limitations given by Dr. Hansen conflict with the ALJ’s RFC assessment and,
thus, the ALJ should have explained why he rejected part of Dr. Hansen’s opinion
while adopting others, citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
(holding that an ALJ may not “pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a finding of nondisability”).
We find no error. First, we agree with the Magistrate Judge that Dr. Hansen’s
statements that Ms. Sullivan might have difficulty working in the majority of
competitive environments and should locate work within a highly structured and
-5-
supportive setting are not “true medical opinion[s]” about the nature and severity of
her mental limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008)
(explaining that a “true medical opinion” is one that contains a doctor’s “judgment
about the nature and severity of [the claimant’s] limitations, or any information about
what activities [the claimant] could still perform,” citing 20 C.F.R. § 404.1527(a)(2)).
Rather, these are vocational opinions, which are reserved for the Commissioner to
make. Id.Second, we further agree with the Magistrate Judge that the ALJ did not
ignore, and his RFC assessment does not conflict with, Dr. Hansen’s medical
opinions; thus, Haga is inapposite. In Haga, the ALJ adopted some of the mental
restrictions identified by the treating physician, but disregarded other restrictions
without any explanation. 482 F.3d at 1207-08. Here, in contrast, the ALJ’s RFC
determination that Ms. Sullivan was limited to unskilled, supervised work with no
regular public contact adequately addressed Dr. Hansen’s medical opinion that
Ms. Sullivan’s gross mental status is within normal limits but that she is unable to
tolerate stress due to her probable borderline personality disorder.
Ms. Sullivan next argues that the ALJ did not evaluate properly the opinion of
the non-examining state agency medical doctor. On Section I of the Mental Residual
Functional Capacity Assessment Form SSA–4734–F4–SUP (Mental RFC Form), the
state agency doctor checked a box indicating that Ms. Sullivan was moderately
limited in the ability to maintain attention and concentration for extended periods,
-6-
maintain a schedule and regular attendance, and complete a normal workday. See
Aplt. App. Vol. III, at 444-45. In Section III of the Mental RFC Form, Functional
Capacity Assessment, the state agency doctor concluded that Ms. Sullivan “does not
respond well to stress and she is very emotional and would have some problems
working on account of these difficulties, but should be able to perform unskilled
work activity.” Id. at 446. The ALJ found that this opinion supported his RFC
determination.
Ms. Sullivan argues the limitations noted in Section I are in addition to those
in Section III and, thus, the ALJ’s RFC assessment is flawed because it failed to
mention the moderate limitations on performance indicated in Section I of the Form.
We again find no error. According to the guidance in the Social Security
Administration’s Program Operations Manual System (POMS), “Section I [of the
Mental RFC Form] is merely a worksheet to aid in deciding the presence and degree
of functional limitations and the adequacy of documentation and does not constitute
the RFC assessment[, whereas] Section III—Functional Capacity Assessment, is for
recording the mental RFC determination.” POMS DI 24510.060 (emphasis omitted),
available at https://secure.ssa.gov/poms.nsf/lnx/0424510060. “It is in [Section III]
that the actual mental RFC assessment is recorded, explaining the conclusions
indicated in [S]ection I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” Id. Thus, as the
Magistrate Judge ruled, the ALJ accepted the state agency’s ultimate opinion that,
-7-
with all of the moderate limitations, Ms. Sullivan could perform unskilled work. We
have repeatedly held that while an ALJ must consider all of the evidence in the
record, nothing requires the discussion of every piece of evidence. See, e.g., Clifton
v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
III.
The Commissioner’s decision applied the correct legal standards, and it is
supported by substantial evidence. For these reasons, the judgment of the district
court is affirmed.
Entered for the Court
Mary Beck Briscoe
Chief Judge
-8-