Paulek v. Colvin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 3, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JAPETH PAULEK,
Plaintiff - Appellant,
v. No. 16-1007
(D.C. No. 1:13-CV-03264-LTB)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Japeth Paulek appeals from a decision of the district court affirming the
Commissioner’s denial of disability insurance benefits and supplemental security
income. Mr. Paulek argues that the administrative law judge (ALJ) erred in
(1) relying on a medical expert and interpreting the assessment of a consultative
examining physician; (2) accounting for his allegations of pain; and (3) concluding at
*
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 This order and judgment is not binding precedent,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.
step four that he could return to his past work. Exercising jurisdiction under
28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm in part and reverse in part.
I
Mr. Paulek applied for disability insurance benefits and supplemental security
income in January 2011, claiming he was disabled by Type I diabetes mellitus with
neuropathy in his lower extremities, lower back pain, depression, arthritis, and
fibromyalgia.
Dr. Michelle Warfield, a consultative examining physician, submitted an
evaluation of Mr. Paulek’s mental impairments. She observed that his depression
began six months prior to the exam when “he became less motivated ‘because of [his]
pain.’” Aplt. App. Vol. 3 at 777. She also found that he had difficulty with
concentration; he was unable to perform serial 7s, spell Denver backwards, identify
the number of weeks in a year, and name what continent Brazil is on. She ultimately
diagnosed him with adjustment disorder with a chronically depressed mood and gave
him a global assessment of functioning (GAF) score of 60. Dr. Warfield concluded
that his cognitive abilities appear limited and though he “should be able to
understand, remember, and carry out simple one-step instructions,” he “would likely
have marked difficulty in understanding and carrying out complex instructions.”
Id. at 778.
At the hearing, Dr. Alan Coleman testified as a medical expert. He testified
that he had “done an awful lot of endocrinology.” Id. at 848. Dr. Coleman identified
the following complications rooted in Mr. Paulek’s diabetes: neuropathy in his lower
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extremities, retinopathy, and nephropathy. Of these complications, Dr. Coleman
opined that only the neuropathy could constitute a severe impairment. Recounting an
examination of Mr. Paulek that found his legs to have normal sensation with bilateral
strength and with deep tendon reflexes bilaterally equal, Dr. Coleman observed that
these “are not the findings that we see in somebody who’s got nerve damage because
the nerve damage affects the . . . strength, and generally eliminates the reflexes.”
Id. at 854. Calling it “a little bit vexing,” Dr. Coleman noted that Mr. Paulek has
“had bad uncontrolled diabetes for a long time, [so] it’s not surprising that he would
have some nerve damage.” Id. at 854–55. “On the other hand, it’s not documented
by anything in the medical record. . . . I don’t think I can say that he’s got severe
neuropathy.” Id. at 855.
On this basis, Dr. Coleman testified that he would impose the following
limitations: Mr. Paulek could be up on his feet for four hours in an eight-hour
workday and sit for six hours; lift 20 pounds occasionally and 10 pounds frequently;
and occasionally climb stairs, climb a ladder, bend, stoop, kneel, and crawl.
Regarding Mr. Paulek’s back pain, Dr. Coleman observed the lack of a herniated disk
or sciatica, noting that his “examinations have been normal” and “[t]here’s no
evidence that it’s a severely limiting back pain.” Id. at 859. Regarding his
fibromyalgia, Dr. Coleman acknowledged that Mr. Paulek was in pain but opined
that such pain did not constitute a severe impairment because “[a]ll of the
examinations that we have here are that his strength is good [and] [h]e can do
things.” Id. at 859–60.
3
After considering this and other evidence, the ALJ issued an unfavorable
decision. At step two of the five-step sequential evaluation, he found that Mr. Paulek
suffered from the following severe impairments: insulin-dependent diabetes mellitus
type I with neuropathy and mild retinopathy and nephropathy, gastroesophageal
reflux disease, chronic lower back pain, fibromyalgia, and depression. See Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step process).
Finding no impairment to meet the severity of a listed impairment at step three, the
ALJ proceeded to determine Mr. Paulek has the residual functional capacity (RFC) to
perform light work with the following limitations:
he is limited to 30 minutes of sitting per episode for 6 hours in an
8-hour day. He can stand for 30 minutes at a time and walk for 15
minutes at a time for a total of 6 hours standing and/or walking in an
8-hour day. The claimant can occasionally use foot controls, climb,
stoop and crouch. He can never be expos[ed] to unprotected heights,
moving mechanical parts, extreme cold and vibration. The claimant can
tolerate occasional exposure to extreme heat, dusts, odors, fumes and
pulmonary irritants, and he can occasionally drive as part of his work
duties. Mentally, the claimant is able to understand, remember and
carry out simple instructions.
Aplt. App. Vol. 1 at 31. At step four, the ALJ determined Mr. Paulek could perform
his past relevant work as a service station attendant, relying on the vocational
expert’s (VE) testimony.1
1
The VE also testified at the hearing that Mr. Paulek could return to his past
work as a cashier.
4
In discussing the relevant medical evidence, the ALJ relied heavily on
Dr. Coleman’s testimony. He cited Dr. Coleman’s analysis of Mr. Paulek’s
neuropathy, recounting:
[T]here are no significant objective findings to support a diagnosis of
diabetic neuropathy. Dr. Coleman noted several instances in the record
where despite the claimant’s alleged pain he had normal neurologic
findings of the lower extremities, including normal sensation, strength
and reflexes. He opined that such findings were not consistent with true
nerve damage and that indeed at least one examining doctor described
the claimant’s pain as “muscular” in nature. Dr. Coleman conceded that
the claimant has had consistent complaints of neuropathic pain, but in
the absence of substantiating objective findings he did not think this was
a severe condition.
Id. at 33 (citations omitted). The ALJ also noted Dr. Coleman’s analysis of
Mr. Paulek’s lower back pain — “he has consistently had normal examinations of the
spine and lower extremities, failing to support any significant limitations caused by
this complaint.” Id. at 33. The Appeals Council denied review and the district court
affirmed.
II
On appeal, Mr. Paulek argues that the ALJ should not have relied on
Dr. Coleman’s expert assessment and misinterpreted Dr. Warfield’s mental RFC
assessment. He also contends that the ALJ failed to properly consider his allegations
of pain in determining his RFC. Finally, he insists the ALJ erred at step four because
his past relevant work requires skills restricted by his RFC. We review the
Commissioner’s decision to determine “whether substantial evidence supports the
factual findings and whether the ALJ applied the correct legal standards.” Allman v.
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Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In doing so, “we neither reweigh the
evidence nor substitute our judgment for that of the agency.” Newbold v. Colvin,
718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
A
Mr. Paulek frames his argument about Dr. Coleman’s testimony like an issue
of weight applied by the ALJ, but in maintaining that Dr. Coleman was simply
incorrect in his medical assessment by virtue of overlooking certain evidence of
record, this claim amounts to nothing more than a challenge to the ALJ’s RFC
determination as unsupported by substantial evidence. An ALJ must determine a
claimant’s RFC “based on all of the relevant medical and other evidence.” 20 C.F.R.
§ 404.1545(a)(3). While the “record must demonstrate that the ALJ considered all of
the evidence,” there is no requirement that an ALJ “discuss every piece of evidence.”
Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation marks
omitted).
Mr. Paulek points to multiple pieces of evidence in the record that he thinks
undermine Dr. Coleman’s, and thus the ALJ’s, assessment of his impairments. But
we fail to see a meaningful distinction, or any for that matter. Mr. Paulek asserts that
the ALJ ignored a nerve conduction test that “produced abnormal results in [his] left
and right lower extremities, and his right upper extremity, establishing
polyneuropathy.” Opening Br. at 23. The doctor performing that test, however,
noted twice that it showed evidence of “mild” neuropathy, Aplt. App. Vol. 3 at 629,
630, which comports with Dr. Coleman’s conclusion that Mr. Paulek likely has
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“some nerve damage” but not severe neuropathy, id. at 855 (testifying “I don’t think
we have anything that strongly corroborates a diagnosis of severe neuropathy.”);
see also Aplt. App. Vol. 2 at 572 (consultative examiner observing mild sensory
neuropathy). There is no requirement that the ALJ, in adopting Dr. Coleman’s
analysis, “reference everything in the administrative record,” Wilson v. Astrue,
602 F.3d 1136, 1148 (10th Cir. 2010), especially when the evidence supports the
ALJ’s conclusion, Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). In any
event, Mr. Paulek was found to have normal sensation and strength in his legs on
other occasions. E.g., Aplt. App. Vol. 3 at 691, 748. Thus, even if Mr. Paulek was
right about the nerve conduction test, the ALJ was “entitled to resolve [such]
conflicts in the record.” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Mr. Paulek also avers that the ALJ’s decision is in direct conflict with lumbar
and cervical MRIs performed in March 2010, “which showed disc dessication and
disc space narrowing,” among other things. Opening Br. at 23–24. But Mr. Paulek
again cherry picks words in this evidence to the exclusion of the relevant findings.
The cervical MRI revealed “mild disc dessication throughout the cervical spine with
mild disc bulges, and thus “[n]o significant findings.” Aplt. App. Vol. 2 at 412. The
lumbar MRI likewise revealed “[d]isc dessication at T12-L1 with mild disc space
narrowing.” Id. The radiologist therefore concluded that the exam was “overall
unremarkable” but for the mild narrowing. Id. at 413. These findings are entirely
consistent with the ALJ’s conclusion that Mr. Paulek’s examinations were normal
and failed to support any significant limitations, especially in light of other evidence
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that shows he had a normal gait, full or close-to-full range of motion in his back.
Id. at 572; see Haga, 482 F.3d at 1208.
B
Mr. Paulek argues that the ALJ misinterpreted the evidence by characterizing
his GAF scores of 60 and 50 as “mild” and “moderate,” respectively, when such
scores are actually “moderate” and “serious” according to the Diagnostic and
Statistical Manual of Mental Disorders. However, Mr. Paulek concedes in his reply
brief that he is “not arguing that serious or moderate GAF scores necessitate a finding
of disability.” Reply Br. at 3. “Rather, Mr. Paulek contends that this mistake
represents another example of the ALJ’s failure to adequately review and understand
the medical evidence in the record.” Id. Our task is not to take alleged mistakes of
the ALJ as exemplary of larger, more fundamental mistakes and call it a day,
especially when we have found the other “mistakes” he alleges to be anything but. It
is Mr. Paulek’s obligation to put forth specific points of error for our consideration.
See Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (“But [claimant]
identifies no factual or legal errors compelled by the ALJ’s use of the word “mild” to
describe her obesity.”); see also Garrett v. Selby Connor Maddox & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (“[T]he court cannot take on the responsibility of . . .
constructing arguments and searching the record.”). Mr. Paulek fails to “identify
how the ALJ’s [characterization] affected his RFC determination or his ultimate
conclusion of nondisability.” Howard, 379 F.3d at 947. In any event, the ALJ’s
RFC determination is consistent with Dr. Warfield’s RFC assessment
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notwithstanding the GAF inconsistency, as he adopted the limitations therein.
Mr. Paulek has thus failed to identify any error by the ALJ as to his
mental impairment.
C
“A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993).
In evaluating whether a claimant has disabling pain, we consider whether the
claimant has proffered objective medical evidence of a pain-producing impairment,
and if so, whether there is a loose nexus between the claimant’s subjective allegations
of pain and the impairment, and if so, whether the claimant’s pain is in fact disabling,
considering both objective and subjective evidence. Id. (citing Luna v. Bowen,
834 F.2d 161, 163–64 (10th Cir. 1987)).
Mr. Paulek contends that, considering his subjective claims of pain resulting
from his diabetes, the ALJ was required to “make findings regarding the Luna
factors.” Opening Br. at 27. But we discern no omission by the ALJ. He expressly
found that the objective evidence showed impairments that could reasonably be
expected to produce the symptoms alleged. Aplt. App. Vol. 1 at 32. In finding
Mr. Paulek’s allegations not credible, however, the ALJ specifically noted that he “is
without significant objective findings, failing to support an inability to engage in all
sustained employment as alleged at the hearing.” Id. at 32–33. Not only that, the
ALJ pointed out that Mr. Paulek’s testimony regarding his activities of daily living is
“not consistent with a totally disab[ling] level of physical impairment.” Id. at 33.
9
The ALJ thus considered the degree to which Mr. Paulek’s subjective claims were
consistent with the medical evidence, see SSR 16-3p, 2016 WL 1119029 at *5–6,
which comports with Luna.
D
Mr. Paulek argues that his limitation to understanding, remembering, and
carrying out simple instructions renders him unable to perform the work of a service
station attendant because that work requires a reasoning level of three under the
Dictionary of Occupational Titles (DOT).2 DOT level-three reasoning requires the
ability to “[a]pply commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form [and d]eal with problems involving several
concrete variables in or from standardized situations.” DOT Vol. 2 at 1011. In
contrast, level-two reasoning requires enough understanding to carry out “detailed
but uninvolved instructions,” and level-one reasoning requires only the ability to
carry out “simple one- or two-step instructions.” Id.
As Mr. Paulek notes, we have previously held that a limitation to “simple and
routine work tasks . . . seems inconsistent with the demands of level-three
reasoning.” Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (internal
quotation marks and citation omitted). While we have not spoken to whether a
limitation to simple and routine work tasks is analogous to a limitation to carrying
out simple instructions, the Eighth Circuit has held that a limitation to simple
2
Incidentally, though the ALJ did not make any findings about Mr. Paulek’s
past work as a cashier, that job also has a reasoning level of three. DOT Vol. 1
at 183.
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instructions is inconsistent with both level-two and level-three reasoning. See Lucy
v. Chater, 113 F.3d 905, 909 (8th Cir. 1997). An “ALJ must investigate and elicit a
reasonable explanation for any conflict between the [DOT] and expert testimony
before the ALJ may rely on the expert’s testimony as substantial evidence to support
a determination of nondisability.” Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.
1999) (emphasis added); see also Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir.
2009) (noting that SSR 00-4p “requires that an ALJ must inquire about and resolve
any conflicts between a [VE’s] testimony regarding a job and the description of that
job in the [DOT.]”).
Though the ALJ asked the VE whether his testimony was consistent with the
DOT, it clearly was not, and the ALJ did not make alternative findings at step five.
Thus, there is a conflict between the VE’s testimony and the job descriptions in the
DOT for service station attendant and cashier. The ALJ failed to have the VE
reconcile this conflict and therefore committed reversible error. On remand, to
comply with Haddock, the Commissioner will need to elicit a reasonable explanation
as to how Mr. Paulek can perform two level-three-reasoning jobs with a limitation to
carrying out simple instructions or proceed to step five.
III
We affirm the ALJ’s decision as to the first three issues, reverse in part the
judgment of the district court, and remand the case to the district court with
11
instructions to remand the case to the Commissioner for further proceedings
consistent with this order and judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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