Berumen v. Colvin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MAGDELINE B. BERUMEN,
Plaintiff - Appellant,
v. No. 15-1150
(D.C. No. 1:13-CV-02722-MJW)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Magdeline B. Berumen appeals the district court’s judgment affirming the
Commissioner’s decision denying her application for disability benefits. Exercising
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I. Background
Berumen applied for disability insurance benefits and supplemental security
income benefits, alleging her disability commenced April 4, 2007, when she was
*
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 This order and judgment is not binding precedent,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.
38-years-old. The agency denied her application and following a hearing, an
Administrative Law Judge found Berumen not disabled. The Appeals Council denied
Berumen’s review request.
After Berumen sought review of the ALJ’s decision in district court, the
Commissioner filed an unopposed motion to remand the case to the agency for
rehearing. On remand, the same ALJ conducted a second hearing and again denied
her claim, applying the five-step sequential evaluation process. See Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007). At step one, the ALJ noted Berumen had not
engaged in substantial gainful activity since the onset date of her alleged disability.
At step two, the ALJ found Berumen had the following severe impairments:
fibromyalgia, asthma, migraine headaches, and anxiety. At step three, the ALJ found
Berumen did not have an impairment or combination of impairments that met or
equaled a listed impairment.
The ALJ then assessed Berumen’s residual functional capacity (RFC),
concluding she could perform sedentary work with some additional restrictions. At
step four, the ALJ determined Berumen couldn’t perform her past relevant work as a
telephone solicitor and customer service representative but at step five, she could
perform other jobs existing in significant numbers in the national economy.
The Appeals Council concluded that the ALJ’s decision complied with the
remand order and denied further review. Berumen then filed this action in district
court and the parties consented to proceed before a magistrate judge. The magistrate
judge affirmed the ALJ’s decision and Berumen appeals.
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II. Discussion
When the Appeals Council denies review, the ALJ’s decision is the
Commissioner’s final decision. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003). “We 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.” Id. at 760. “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 internal quotation marks omitted). “In reviewing the ALJ’s decision,
we neither reweigh the evidence nor substitute our judgment for that of the agency.”
Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks
omitted).
On appeal, Berumen argues the ALJ: (1) “improperly rejected the
uncontroverted opinions of physical restrictions from two treating physicians,”
Aplt. Br. at 12; and (2) “did not properly account for the moderate deficits in
concentration, persistence, and pace that she found Ms. Berumen to have,” id. at 28.
The magistrate judge’s decision affirming the ALJ’s denial of Berumen’s
disability claim thoroughly analyzed and rejected these arguments. We agree with the
magistrate judge’s assessment of Berumen’s claims and rather than repeat that
analysis here, we offer a few clarifying comments.
Berumen argues that the ALJ improperly evaluated her treating physician
opinions. Although Berumen does not challenge the ALJ’s determination that the
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opinions were not entitled to controlling weight, she asserts that the ALJ did not
provide adequate reasons for “rejecting”1 those opinions. Aplt. Br. at 17. As the
magistrate judge explained, the ALJ gave reasons for assigning little weight to the
opinions and those reasons were supported by the record evidence. An ALJ is not
required to discuss all of the factors for weighing a medical source opinion in
20 C.F.R. § 404.1527. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
The ALJ’s analysis of the treating-physician opinions here is “sufficiently specific to
make clear to any subsequent reviewers the weight [she] gave to the treating source’s
medical opinion and the reasons for that weight.” Id. (internal quotation marks
omitted).
Berumen also complains that the ALJ improperly substituted her own opinion
for that of the two treating physicians when making the RFC determination because
the ALJ included a ten-pound lifting restriction in the RFC when her physicians had
restricted her to lifting five pounds. She appears to argue that an ALJ may not make
an RFC finding that differs from a physician’s opinion unless the ALJ relies on a
conflicting medical opinion. See Aplt. Br. at 24-26. We disagree.
In Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012), we rejected the
argument “that the components of an RFC assessment lack substantial evidentiary
1
We disagree with this characterization as the ALJ did not reject the opinions,
but instead stated that she was assigning them “little weight,” Admin. R., Vol. III at
441. Moreover, although Berumen claims that the ALJ “obviously” rejected the
opinions because she “did not follow the restrictions,” Aplt. Br. at 14, that statement
is not accurate. Both the ALJ’s RFC and the treating-physician report conclude that
Berumen should be limited to standing/walking for a total of two hours in an eight
hour day. See Admin. R., Vol. III at 437; id., Vol. II at 378.
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support unless they line up with an expert medical opinion.” As we noted in Chapo,
“[t]here is no requirement in the regulations for a direct correspondence between an
RFC finding and a specific medical opinion on the functional capacity in question.”
Id. Moreover, as the magistrate judge explained in rejecting Berumen’s argument
below, it is ultimately the ALJ’s responsibility, not a physician’s, to assess a
claimant’s RFC from the medical record. See Aplt. App. at 138 (citing Chapo,
682 F.3d at 1288).
Berumen also argues the ALJ failed to properly account for her moderate
limitations in concentration, persistence, and pace in assessing her RFC. As the
magistrate judge explained, an ALJ is not obligated to specifically include these
types of limitations in a claimant’s RFC based solely on a finding at the distinct step-
three analysis that a claimant has moderate difficulties in these areas. Further, the
magistrate judge agreed with the Commissioner that an RFC for unskilled work
addresses more than just skill transfer, noting the Commissioner’s policy describing
the mental activities generally required for such work. The magistrate judge
determined that the ALJ’s RFC for unskilled work adequately accounted for
Berumen’s credible limitations and was supported by substantial evidence.
Our recent decision in Vigil v. Colvin, 805 F.3d 1199 (10th Cir. 2015), lends
further support to the magistrate judge’s analysis. In Vigil, as here, the ALJ found at
step three that the claimant experienced moderate difficulties in concentration,
persistence, and pace. And the ALJ in Vigil, like the ALJ here, took those difficulties
into account in formulating the RFC by limiting the skill level of the claimant’s work
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to an SVP2 of one or two. The claimant argued, as Berumen does here, that “the ALJ
should have included in his RFC his specific concentration, persistence[,] and pace
limitations, rather than account for those limitations by restricting his RFC to
unskilled (SVP one or two) work.” Vigil, 805 F.3d at 1203. But we found no error
by the ALJ, noting “that limiting the plaintiff to an SVP of only one or two[]
adequately took into account his moderate limitations in concentration, persistence,
and pace.” Id. at 1204. The same reasoning holds true here.
The judgment of the district court is affirmed for substantially the same
reasons stated in the magistrate judge’s order of March 11, 2015.
Entered for the Court
Nancy L. Moritz
Circuit Judge
2
“SVP” is short for “specific vocational preparation.” Vigil, 805 F.3d at 1201.
“SVP refers to the time required by a typical worker to learn the techniques, acquire
the information, and develop the facility needed for average performance in a specific
job-worker situation.” Id. at 1201 n.2 (internal quotation marks omitted).
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