Bailey v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 8 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLENE BAILEY,
Plaintiff-Appellant,
v. No. 98-5022
(D.C. No. 96-CV-1055-J)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before PORFILIO, BARRETT, and KELLY , Circuit Judges.
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
*
Pursuant to Fed. R. App. P. 43(c)(2), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Charlene Bailey appeals the denial of her application for
Supplemental Security Income disability benefits. We exercise jurisdiction under
42 U.S.C. § 405(g) and affirm.
Plaintiff alleges disability because of a severe mental impairment, arthritis
and a positive diagnosis for hepatitis C. 1
The Administrative Law Judge (ALJ)
found at step two of the sequential evaluation process that plaintiff had no
impairment or combination of impairments which significantly limit her ability to
perform basic work-related functions. We review this decision to determine only
whether the relevant findings are supported by substantial evidence and whether
the Commissioner applied correct legal standards. See Hargis v. Sullivan , 945
F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. We cannot reweigh the evidence or substitute our judgment for that of the
1
Plaintiff’s case before the ALJ was primarily based on her alleged disabling
alcoholism. Since her hearing before the ALJ, the social security statutes have
been amended to deny benefits in certain circumstances to persons suffering from
alcoholism or drug addiction. See 42 U.S.C. § 1382c(a)(3)(J). In affirming the
denial of benefits, the district court did not rely on the Commissioner’s
alcoholism argument because the ALJ did not conduct the analysis or make the
findings required by the Commissioner’s own regulations. See 20 C.F.R.
§ 416.935. Plaintiff does not argue on appeal that she is disabled because of
alcoholism.
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Commissioner. See id. On appeal, plaintiff argues that (1) the Commissioner did
not properly consider her hepatitis C as a separate impairment from her hepatitis
B; 2 (2) the ALJ failed to properly evaluate her mental impairment; and (3) the
ALJ failed to properly develop the record regarding her diagnosed arthritis.
The record shows that plaintiff had positive hepatitis C antibodies for
approximately twenty months. By November 1995, Dr. Michael Scott found this
condition to be suggestive of a chronic state. While he noted that plaintiff’s liver
functions were normal as of June 1995, Dr. Scott also noted that “[t]reatment for
chronic or active hepatitis C with interferon may be helpful in some cases to
induce remission.” R. Vol. II at 173.
It is the plaintiff’s burden to prove disability. Hawkins v. Chater , 113 F.3d
1162, 1164 (10th Cir. 1997). In order to demonstrate at step two that an
impairment is severe, plaintiff must show that it “significantly limits [her]
physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c).
While we have characterized this showing as “de minimis,” see Hawkins ,
113 F.3d at 1169, the mere presence of a condition or ailment documented in the
record is not sufficient to prove that the plaintiff is significantly limited in the
ability to do basic work activities, see Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th
2
The evidence regarding plaintiff’s hepatitis C was not before the ALJ but
was presented later to the Appeals Council.
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Cir. 1997). Unfortunately for plaintiff, there is nothing more in the record
regarding her hepatitis C than the evidence reviewed above. There is no evidence
of any functional component associated with the presence of her hepatitis C.
Accordingly, there was substantial evidence to support the Commissioner’s
conclusion that plaintiff’s hepatitis was not a severe impairment.
Plaintiff next argues that the ALJ improperly evaluated her alleged mental
disorder. In reviewing the record, the ALJ took note of plaintiff’s affective
disorder and the diagnoses of personality disorder with schizoid features and mild
depressive disorder. He noted also, however, that “examination indicates that
there are no abnormal thought processes and no significant suicidal ideation. . . .”
R. Vol. II at 24. The ALJ further observed that “[t]he consultative examiners
were unable to find significant impairments, and cited only the alcohol abuse and
affective disorder, based on her reports of drinking and history of treatments for
mental disorders, but she currently denies any symptoms.” Id. This is a faithful
recap of the record evidence.
Plaintiff received two consultative mental examinations. Both examiners
completed a Psychiatric Review Technique (PRT) form, and both concluded that
plaintiff had no severe impairment. See id. at 41, 58. Plaintiff asserts that the
ALJ ignored a medical opinion on one of these forms that her mental impairment
causes moderate difficulties in her ability to maintain social functioning. While
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Dr. Bernard Pearce did indicate this limitation, he also concluded in two other
places on the form that, overall, plaintiff had no severe impairment. See id. at 58,
67. The ALJ did not err in refusing to find that this single observation
established a severe mental impairment.
As is required at every adjudicative step of the disability determination
process where a mental impairment is alleged, the ALJ completed a PRT form
which he attached to his decision. Plaintiff charges that the ALJ did not discuss
his conclusions or link those conclusions to specific evidence. We disagree.
In his decision, the ALJ specifically stated that plaintiff’s affective disorder
did not cause significant vocational limitations. See id. at 23. He also discussed
the findings of the two consultative examiners who concluded that plaintiff did
not have a severe mental impairment. See id. at 41, 58. The ALJ’s PRT form is
simply a synthesis of the evidence in the record. Where the categories presented
on the PRT form were inadequate to accurately describe plaintiff’s circumstances,
the ALJ added comments on the line marked “other.” See id. at 28-29. All of
these clarifying comments find support in the record. Thus, the ALJ performed
an adequate legal analysis of plaintiff’s mental condition.
Finally, plaintiff argues that the ALJ breached his duty to develop the
record when he ordered a consultative examination of plaintiff’s arthritis without
also ordering x-rays. This argument is also without merit. Plaintiff was
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diagnosed with chronic arthritis of the hip and lower back in November 1993
despite walking without difficulty and presenting no acute pain or distress. See
id. at 147. Presumably based on this evidence and plaintiff’s allegations of
disabling arthritic pain, a consultative exam was ordered. That exam, done in
October of 1994, identified some tenderness in the right shoulder and the
lumbodorsal area. Plaintiff’s gait was normal to speed, stability, and safety and
she had no difficulty getting on and off the examining table. See id. at 110-11.
There was no joint deformity or swelling. See id. at 111. The consultative
physician did not diagnose arthritis.
The ALJ’s duty to order a consultative examination is triggered when the
plaintiff has advanced evidence “sufficient to suggest a reasonable possibility that
a severe impairment exists,” see Hawkins , 113 F.3d at 1167. “The ALJ does not
have to exhaust every possible line of inquiry in an attempt to pursue every
potential line of questioning. The standard is one of reasonable good judgment.”
Id. at 1168. Given the overwhelmingly normal results of plaintiff’s range of
motion studies and the presence of only slight pain and tenderness in the
lumbodorsal area from the consultative exam and her treating physician’s
observation that she walked without difficulty and presented no acute pain or
distress, there was no need for the ALJ to order x-rays. Plaintiff’s suggestion that
her indigence prevented her from obtaining x-rays is belied by the medical record,
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which indicates that she has been able to obtain significant medical care
throughout the years despite her lack of funds.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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