Miller v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 7, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DONNA L. MILLER,
Plaintiff-Appellant,
v. No. 05-6248
(D.C. No. CIV-04-906-L)
JO ANNE B. BARNHART, (W.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and MURPHY, Circuit Judges.
Donna L. Miller appeals from an order affirming the Commissioner’s
decision that she is not entitled to social security disability insurance benefits.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. 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.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
Background
The lengthy history of Ms. Miller’s disability claim begins with her October
24, 1996 application, in which she alleged disability since July 1, 1993. Ms.
Miller, whose insured status expired September 30, 1995, listed her disabling
condition as “nervous breakdown (1988-89).” Aplt. App. at 60. Accordingly,
the evidence relevant to her claim pertains to her mental impairment after the
alleged onset date and before the expiration of her insured status. See Henrie v.
U.S. Dep’t of Health & Human Serv., 13 F.3d 359, 360 (10th Cir. 1993).
Ms. Miller’s medical records indicate that she was hospitalized from
February 7 to March 15, 1989, for a single episode of major depression with
psychotic features, apparently precipitated by marital and family-related stressors.
She was discharged in improved condition with instructions to continue her
psychiatric care and take her medication. Ms. Miller did not return to her
previous job as a dishwasher in a restaurant, but she worked from July to
September 1990 in a nursing home and, in 1993, was a self-employed cattle
salesperson. From her 1989 discharge to her 1996 disability application,
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Ms. Miller received medical care for various physical problems, but was not seen
again by a mental-health provider. 1
In her social security case, an Administrative Law Judge (ALJ) held a
hearing on May 7, 1998. A psychiatrist testified that the lack of “anything
ongoing, recent” made an evaluation difficult and that she could determine
whether Ms. Miller met a listing more objectively if the Commissioner ordered
psychological testing. Aplt. App. at 215-16. On August 24, 1998, a psychologist
evaluated Ms. Miller at the request of the Commissioner. The psychologist’s
report shows a diagnosis of recurrent major depression, with possible psychotic
features; chronic pain syndrome; and anxiety disorder, primarily represented by
social phobia. The psychologist also completed a mental residual functional
capacity (RFC) assessment form, noting several moderate and marked limitations
in her ability to perform work-related activities. Neither the report nor the RFC
assessment indicated a continuity between the 1989 psychotic break and
Ms. Miller’s condition on the date of the evaluation.
Shortly afterwards, the ALJ denied Ms. Miller’s application for benefits.
Relying heavily on the psychologist’s report of the consultative examination, the
1
On appeal, Ms. Miller emphasizes the record of an emergency room visit
for abdominal pain in June 1996 contains a “diagnostic impression of “chest pain,
poss[ible] anxiety.” Aplt. App. at 133. This notation does not constitute a
linkage between her episode of depression in 1989 and her later claim of
a continuing mental problem.
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ALJ found that Ms. Miller had a severe depressive and anxiety disorder, but that
she had the RFC to perform the physical and mental demands of her past relevant
work as a dishwasher. The Commissioner, however, had not provided the report
to Ms. Miller. Upon judicial review, the district court reversed the denial of
benefits, holding that Ms. Miller’s due process rights were violated by the
Commissioner’s failure to give her notice of the post-hearing report or a
meaningful opportunity to rebut this evidence.
A second ALJ then held a hearing on remand. Douglas Brady, a clinical
consultative psychologist, testified that a fair inference from the medical record
was that Ms. Miller needed intensive treatment in 1997. He also commented on
the lack of records of psychological or psychiatric treatment during the time
period relevant to her claim. Ms. Miller testified about her condition from 1997
through the date of the hearing.
In a decision dated July 26, 2002, the second ALJ found that Ms. Miller
“had a mental difficulty that did significantly restrict her ability to do basic work
activities,” that she had the RFC for jobs with low to moderate stress, and that her
past relevant work as a dishwasher was within this RFC. Id. at 269. Based on his
findings, the ALJ concluded at step two of the sequential evaluation process that
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Ms. Miller had a significant impairment, but denied benefits at step four because
she could perform her past relevant work. 2
Ms. Miller appealed the denial and, in 2003, the Appeals Council
determined that the second ALJ’s decision was unsupported and insufficient.
It therefore remanded the case, with specific directions to the ALJ to develop
the record on remand by: (1) updating the record with reports from health care
providers; (2) preparing a “new, longitudinal” RFC determination; (3) holding a
supplemental hearing, with testimony from a vocational expert; (4) reconsidering
claimant’s testimony; and (5) taking action necessary to complete the
administrative record before issuing a new decision. Id. at 309.
2
Step one [of the process] requires a claimant to establish she is not
engaged in substantial gainful activity. Step two requires the
claimant to establish she has a medically severe impairment or
combination of impairments. Step three asks whether any medically
severe impairment, alone or in combination with other impairments,
is equivalent to any of a number of listed impairments so severe as to
preclude substantial gainful employment. If listed, the impairment is
conclusively presumed disabling. If unlisted, the claimant must
establish at step four that her impairment prevents her from
performing work she has previously performed. If the claimant is not
considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and
four, the burden shifts to the Commissioner to show the claimant has
the residual functional capacity (RFC) to perform other work in the
national economy in view of her age, education, and work
experience.
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (internal quotation
marks and citations omitted).
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A third ALJ was assigned to the case. He opened a hearing, informing
claimant he was not bound by any prior decision in the case. The transcript shows
that both the ALJ and Ms. Miller’s attorney were focused on extending
Ms. Miller’s period of insurance eligibility and exploring the feasibility of
Supplemental Security Income benefits. Concerning the medical records, the ALJ
noted that the record didn’t “have a lot of medical evidence up until the date last
insured” and inquired if there would “be substantial medical evidence . . . from
‘89 up to ‘94.” Aplt. App. at 497-98. Ms. Miller’s attorney responded that there
was “a gap from – ‘89 forward. . . . That’s basically when her medical drops off
the chart.” Id. at 497. He also stated that his client “understands the problems.
That’s where we’re stuck. We go around in this case, around and around.” Id.
at 498. The attorney did not suggest that any additional evidence would be
appropriate. A vocational expert was present, but after holding the discussion
with Ms. Miller’s attorney, the ALJ closed the hearing without calling for
vocational testimony.
The ALJ continued the proceedings for sixty days. No additional evidence
relevant to Ms. Miller’s mental condition was produced after the hearing.
Ms. Miller’s attorney submitted a letter to the ALJ which stated: “Quite frankly,
I have nothing further to offer on this claim and have so explained this to the
claimant. As you can see, she is also at her end and simply requests that a
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decision from your office be issued.” Id. at 335. The ALJ then issued the
decision which is the subject of this appeal.
In making his decision, the third ALJ reviewed essentially the same record
available to the second ALJ. At step two of the evaluation process, the ALJ
acknowledged that the record indicated that Ms. Miller had a severe mental
impairment in 1989 and also at the time of her 1998 examination. He concluded,
however, that there was no evidence concerning an impairment in 1995. On
November 26, 2003, the ALJ denied Ms. Miller’s application on the ground that
she was not significantly limited in her ability to perform basic work-related
activities at the relevant time and therefore not severely impaired.
On administrative appeal, the Appeals Council found that “the
Administrative Law Judge complied with the remand order” and declined to
assume jurisdiction. Id. at 235. The district court affirmed the Commissioner’s
decision and this appeal followed.
Legal Discussion
Compliance with remand order
Ms. Miller’s primary argument on appeal is that the ALJ’s actions were
inconsistent with the Appeals Council remand order. Ms. Miller does not assert
that the ALJ’s de novo sequential evaluation caused surprise, confusion, or
prejudice. And she does not describe evidence that she would have presented if
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she had been given formal, explicit notice that the ALJ could revisit the earlier
step-two determination. Instead, she attempts to make a legal argument by
claiming that (1) in light of prior proceedings, the ALJ was precluded from
making a step-two determination that she did not have a severe impairment; and
(2) in accordance with the remand order, the ALJ should have obtained additional
testimony from medical and vocational experts and conducted an analysis of the
previous testimony from medical experts.
Social Security regulations provide that, in the event the Appeals Council
orders a remand, the ALJ “shall take any action that is ordered by the Appeals
Council and may take any additional action that is not inconsistent with the
Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). Preclusion principles,
however, do not “bind the ALJ to his earlier decision. To hold otherwise would
discourage administrative law judges from reviewing the record on remand,
checking initial findings of fact, and making corrections, if appropriate.”
Campbell v. Bowen, 822 F.2d 1518, 1522 (10th Cir. 1987). This court has
“decline[d] to constrain the ALJ in a manner not mandated by the regulations.”
Id. See also Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004) (stating
that “[i]t was certainly within the ALJ’s province, upon reexamining [claimant’s]
record [after Appeals Council remand], to revise his RFC category”); Houston v.
Sullivan, 895 F.2d 1012, 1015 (5th Cir. 1989) (“Once the case was remanded to
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the ALJ to gather more information about the extent of [claimant’s] disability, the
ALJ was free to reevaluate the facts.”). 3
Ms. Miller was advised of this rule at her hearing, when the ALJ announced
that he was not bound by a prior decision. She was also warned that the ALJ
considered the medical evidence lacking. Rather than making an effort to
produce additional evidence or suggest a cure for the obvious gap in the record,
Ms. Miller’s attorney simply conceded that the absence of evidence was
problematic. On the facts of this case, the ALJ’s change in the step two
determination, standing alone, cannot constitute error.
Ms. Miller also argues that the order denying benefits should be reversed
because the ALJ’s actions were inconsistent with the Appeals Council remand
order. Specifically, she asserts that the ALJ disregarded instructions to obtain
additional testimony from medical and vocational experts. The order, however,
did not address the second ALJ’s step-two findings. In context, the instructions
3
Claimant’s cited authority does not detract from the rule this court
established in Campbell. The cases relied upon by Ms. Miller generally involve a
remand from a court, not an administration agency. They discuss and apply the
law of the case doctrine, which requires the administrative agency on remand to
conform its further proceedings to the judicial decision. Brachtel v. Apfel,
132 F.3d 417, 420 (8th Cir. 1997); Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1050
(C.D. Cal. 1998); Richardson v. Apfel, 9 F. Supp. 2d 666, 673 (N.D. Tex. 1998);
Geracitano v. Callahan, 979 F. Supp. 952, 957 (W.D.N.Y. 1997). See also
Schonewolf v. Callahan, 972 F. Supp. 277, 289 (D.N.J. 1997) (noting the ALJ’s
failure to follow the Appeals Council remand order, but independently reviewing
the adequacy of the ALJ’s findings).
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were designed to correct “errors of law affect[ing] the ALJ’s residual functional
capacity findings,” made at step four. Aplt. App. at 307. In response to
Ms. Miller’s final administrative appeal, the Appeals Council found that the third
ALJ complied with its remand order. Under these circumstances, it is appropriate
to examine the Commissioner’s final decision under our usual standards, rather
than focusing on conformance with the particular terms of the remand order.
Cf. 42 U.S.C. § 405(g) (stating that this court is limited to review of the
Commissioner’s final decision); 20 C.F.R. § 404.955(a) (stating that when the
Appeals Council grants a claimant’s request for review, the ALJ’s decision does
not become final).
Substantial evidence and conformity with legal standards
This court reviews 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.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). The court does
not reweigh the evidence or substitute its judgment for that of the Commissioner.
Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996).
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Ms. Miller challenges the Commissioner’s determination that she did not
have a severe impairment at the relevant time. At step two, the claimant must
prove that she has a medically severe impairment or combination of impairments
that significantly limits her ability to do basic work activities. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 404.1521(a). “The step two severity determination is based
on medical factors alone. . . .” Williamson v. Barnhart, 350 F.3d 1097, 1100
(10th Cir. 2003). Although step two requires only a “de minimis” showing of
impairment, a “claimant must show more than the mere presence of a condition or
ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (citations
omitted). To meet this burden, a claimant must furnish medical and other
evidence to support her claim that the impairment prevents her from engaging in
substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 145-46 & n.5
(1987).
Ms. Miller asserts that she carried her burden or, alternatively, she could
have done so if the ALJ had developed the record with the testimony of an
additional medical expert. The record contains no evidence that Ms. Miller was
significantly impaired at the time her insured status expired. Thus we are brought
to the question of whether the third ALJ’s failure to obtain retrospective medical
testimony opinion amounts to a breach of his duty to develop the record.
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The Commissioner “has broad latitude in ordering consultative
examinations,” but “where there is a direct conflict in the medical evidence
requiring resolution or where the medical evidence in the record is inconclusive,
a consultative examination is often required for proper resolution of a disability
claim.” Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997) (citations
omitted). A “retrospective medical assessment of a patient may be probative
when based upon clinically acceptable diagnostic techniques.” Perez v. Chater,
77 F.3d 41, 48 (2d Cir. 1996) (concerning a treating physician’s retrospective
assessment).
The record before the ALJ, however, does not indicate that this exercise
would have revealed “any useful information or that the physicians were willing
to undertake such assessments.” Id. Though Ms. Miller argues that she was
entitled to the testimony of a medical expert, she does not explain how a
diagnosis undertaken ten years after the alleged onset date would have yielded
any probative evidence. Further, she conceded that she had nothing further to
offer and that the time had come to seek a decision. Cf. Hawkins, 113 F.3d
at 1167-68 (stating that, in the absence of a request from counsel, this court does
not ordinarily “impose a duty on the ALJ to order a consultative examination
unless the need for one is clearly established in the record”).
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The ALJ already had Ms. Miller’s complete medical history, testimony
from the two previous hearings, and the 1998 evaluation. Contrary to her
contention, the ALJ adequately evaluated and discussed the record, including the
1998 evaluation. Once he decided that the record did not demonstrate a severe
impairment, the ALJ acted within the “broad latitude” afforded the agency in
declining to obtain further medical testimony. See Hawkins, 113 F.3d at 1166.
For similar reasons, the ALJ was not required to take the testimony of a
vocational expert before making his step two determination.
According Ms. Miller’s social security claim careful consideration at every
administrative and judicial level has led to unfortunate delay. We now conclude,
however, that the Commissioner’s final decision followed appropriate legal
standards and was supported by substantial evidence. AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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