Brescia v. Astrue

FILED
United States Court of Appeals
Tenth Circuit
July 8, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
LYDIA G. BRESCIA,
Plaintiff-Appellant,
v. No. 07-4234
(D.C. No. 2:06-CV-00793-DN)
MICHAEL J. ASTRUE, Commissioner (D. Utah)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.
The administrative law judge (ALJ) denied Lydia Brescia’s applications for
Social Security disabled widow’s benefits and supplemental security income
payments. The Appeals Council denied review, making the ALJ’s decision the
final agency decision, and the district court affirmed. Ms. Brescia now appeals to
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
this court, which has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Applying our limited standard of review in Social Security cases, we affirm.
In order to obtain disabled widow’s benefits and/or supplemental security
income payments, Ms. Brescia must establish that she is “disabled” as that term is
defined for Social Security purposes. See 20 C.F.R. §§ 404.1501, 404.1505(a),
416.901, 416.905(a). After holding a hearing and applying the five-step
sequential evaluation process, the ALJ determined that: (1) Ms. Brescia was not
engaging in any substantial gainful activity; (2) she suffered from some severe
impairments and a number of non-severe impairments; (3) none of her
impairments met or equaled any impairment in the listing of impairments; (4) she
retained the residual functional capacity (RFC) “to perform a significant range of
light work, occasionally climbing, balancing, stooping, kneeling, crouching or
crawling, having limited communication with [] others in loud places due to
hearing loss and avoiding respiratory irritants due to her respiratory
impairments,” Aplt. App. at 26, but that she had no past relevant work to which
she could return; and (5) based on testimony by a vocational expert (VE), she
could perform other work that exists in significant numbers in the national
economy. Consequently, the ALJ determined that she was not disabled and not
entitled to benefits.
On appeal, Ms. Brescia argues that the ALJ improperly determined several
of her impairments did not qualify as “severe” impairments, improperly rejected
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the opinion of her treating physician, improperly evaluated her credibility, failed
to consider lay witness statements in the record, and failed to identify specific
jobs available in the economy in significant numbers that she could perform.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether correct legal standards
were applied.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). In our
review, “[w]e may neither reweigh the evidence nor substitute our judgment for
that of the agency.” Id. (quotation omitted).
Impairments
The ALJ concluded that Ms. Brescia suffers from the severe impairments of
asthma/chronic obstructive pulmonary disease (COPD) and a hearing loss. He
also acknowledged that she suffers from “a disorder of the spine, diabetes
mellitus, a personality disorder, vision problems, intermittent uticaria, obesity and
sleep apnea,” but stated that those impairments “are considered non-severe for our
purposes here.” Aplt. App. at 23. He further stated that the alleged depression,
attention deficit hyperactivity disorder, Lyme disease, and thoracic outlet
syndrome “are not clearly medically determinable and are therefore not further
considered as part of this decision.” Id. Ms. Brescia argues that the ALJ
committed reversible error by not accepting her sleep apnea, obesity, degenerative
disk disease, and hand and arm pain and numbness as severe impairments.
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“We can easily dispose of” an argument that the ALJ should have found
additional impairments to be severe because “[t]he ALJ . . . made an explicit
finding that [the claimant] suffered from severe impairments. That was all the
ALJ was required to do in that regard.” Oldham v. Astrue, 509 F.3d 1254, 1256
(10th Cir. 2007). Once an ALJ has found that a claimant has at least one severe
impairment, a failure to designate another disorder as “severe” at step two does
not constitute reversible error because, under the regulations, the agency at later
steps “consider[s] the combined effect of all of [the claimant’s] impairments
without regard to whether any such impairment, if considered separately, would
be of sufficient severity.” 20 C.F.R. §§ 404.1523, 416.923; see also id.§§ 404.1525(e), 416.945(e); Maziarz v. Sec’y of Health & Human Servs.,
837 F.2d 240, 244 (6th Cir. 1987).
As in Oldham, Ms. Brescia’s true quarrel is not with the step-two findings
concerning which of her impairments are severe, but with the step-four and step-
five findings concerning her RFC and her ability to do any work. See Oldham,
509 F.3d at 1256-57. Notwithstanding the ALJ’s earlier statement that her
thoracic outlet syndrome was “not further considered,” Aplt. App. at 23, in
determining her RFC, he considered those effects of Ms. Brescia’s sleep apnea,
obesity, degenerative disk disease, and hand and arm pain that were supported in
the medical record, in conjunction with the impairments that he deemed severe.
See id. at 24-26. We find no reversible error.
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Opinion of Treating Physician
Ms. Brescia also argues that the ALJ improperly rejected the opinion of her
treating physician, Dr. Ellen Gardner. The doctor indicated that Ms. Brescia
suffers, among other symptoms, chronic neck and back pain, fatigue, and
shortness of breath, and stated that she could walk one-third to one-half of a block
without resting, sit for sixty minutes at a time, and stand for ten minutes at a time,
but she had to lie down for several hours a day. In declining to accept these
functional limitations, the ALJ stated that “the doctor’s progress notes do not
support the need for such functional limitations and appeared to accept the
claimant’s subjective allegations as fact.” Id. at 27.
Generally, the ALJ should give greater weight to the opinions of doctors
who have treated the claimant than those who have not. Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003). “The ALJ is required to give controlling
weight to the opinion of a treating physician as long as the opinion is supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004); see also Social Security Ruling (SSR)
96-2p, 1996 WL 374188, at *2. But if either of these requirements is not met, the
ALJ is not required to give the opinion controlling weight; in fact, it may be an
error to do so. Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *2.
Instead, the ALJ must decide whether to reject the opinion altogether or assign it
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some lesser weight. Watkins, 350 F.3d at 1300-01. “[T]he ALJ must ‘give good
reasons in the notice of determination or decision’ for the weight he ultimately
assigns the opinion.” Id. at 1301 (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration
omitted).
It does not appear that the ALJ entirely rejected Dr. Gardner’s opinion
regarding Ms. Brescia’s fatigue and back pain. For example, he “[gave] the
claimant the benefit of the doubt that sleep apnea is a valid diagnosis,” Aplt. App.
at 25, and he acknowledged that she “has a chronic degenerative disc disease that
causes only intermittent discomfort rather than persistent pain requiring ongoing
treatment,” id. at 26. But he did reject the functional limitations that Dr. Gardner
set forth. In doing so, he indicated that Dr. Gardner’s opinion was based on
Ms. Brescia’s subjective allegations, not medically acceptable clinical and
laboratory diagnostic techniques. Thus, he gave a reason supported by the law,
see Watkins, 350 F.3d at 1300, SSR 96-2p, 1996 WL 374188, at *2, and the
record, see Aplt. App. at 142-46. This issue is not a basis for reversal.
Credibility
Ms. Brescia also challenges the ALJ’s evaluation of her credibility. She
contends that the ALJ’s evaluation was not linked to substantial evidence in the
record and that the ALJ did not specifically address her allegations, instead
“engag[ing] in a wholesale rejection of all of her testimony based on an assertion
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that her daily activities were inconsistent with a disabled individual.” Aplt. Br. at 30.
We have held that an ALJ’s “[f]indings as to credibility should be closely
and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995) (quotation
omitted; alteration in original). In making a credibility assessment, the ALJ
should consider such factors as:
the levels of medication and their effectiveness, the extensiveness of
the attempts (medical or nonmedical) to obtain relief, the frequency
of medical contacts, the nature of daily activities, subjective
measures of credibility that are peculiarly within the judgment of the
ALJ, the motivation of and the relationship between the claimant and
other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Id. (quotation omitted).
The ALJ sufficiently explained the link between the evidence and his
determination that Ms. Brescia’s testimony was not entirely credible. After
thoroughly reviewing Ms. Brescia’s medial history, he explained that the medical
evidence, her own description of her activities, and the fact that she quit her last
job because of transportation issues, not disability, simply were incompatible with
her claim that she is not able to perform any work. Having carefully reviewed the
record, we see no basis to reverse the ALJ’s adverse credibility determination.
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Lay Witness Testimony
Ms. Brescia notes that her sister and a friend provided written descriptions
of her limitations to the ALJ and contends that he ignored this evidence. While
the ALJ did not explicitly discuss the statements of Ms. Brescia’s sister and
friend, we do not believe this omission is grounds for remand given the nature of
their evidence, which was largely cumulative of Ms. Brescia’s testimony and
written statements. See Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996)
(rejecting a rule requiring an ALJ to make specific written findings concerning
each witness’s credibility); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
1996) (holding that an ALJ is not required to discuss every piece of evidence).
Further, where, as here, the ALJ’s decision states that he considered all of the
evidence, “our general practice, which we see no reason to depart from here, is to
take a lower tribunal at its word when it declares that it has considered a matter.”
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Jobs Available in the Economy
Finally, Ms. Brescia contends that the ALJ failed to identify specific jobs
that she could perform because the VE’s testimony was not based on an accurate
hypothetical question that included all of her limitations. She points out that the
VE testified that a need to lie down for several hours each day “‘would rule out
all jobs.’” Aplt. Br. at 36 (quoting Aplt. App. at 391).
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The limitations that Ms. Brescia argues should have been included in the
hypothetical were limitations that the ALJ did not accept to be true. A
hypothetical is sufficient when it contains “all of the limitations found to exist by
the ALJ.” Barnett, 231 F.3d at 690. The ALJ was not required to accept the
VE’s opinion regarding the availability of jobs to a person required to lie down
for several hours each day, as he concluded that this limitation did not exist.
See id.; Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995). The VE’s
testimony that at least three jobs would be available to a hypothetical person of
Ms. Brescia’s age, education, and work history, with the RFC determined by the
ALJ, provides substantial evidence for the ALJ’s step-five determination.
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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