Palmer v. Department of Health & Human Services , 50 F. App'x 957 ( 2002 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 13 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ANN PALMER,
    Plaintiff - Appellant,
    v.                                                 No. 02-2002
    D.C. No. CIV-00-1698-BB/LCS
    DEPARTMENT OF HEALTH AND                        (D. New Mexico)
    HUMAN SERVICES; JO ANNE B.
    BARNHART, * Commissioner of
    Social Security Administration,
    Defendants - Appellees.
    ORDER AND JUDGMENT           **
    Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior District
    Judge.
    *
    On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
    Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
    Appellate Procedure, Ms. Barnhart is substituted as the appellee 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    This order and judgment is not binding precedent, except under the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.
    ***
    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.
    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.
    Plaintiff-appellant Ann Palmer appeals from the district court’s order
    affirming the Commissioner’s denial of her application for disability and
    supplemental security income benefits under the Social Security Act. We exercise
    jurisdiction under 
    42 U.S.C. § 405
    (g) and 
    28 U.S.C. § 1291
    . We affirm.
    I.
    In May 1997, plaintiff applied for social security benefits, alleging that she
    has been disabled since October 1995. After plaintiff’s application was denied
    initially and on reconsideration, a de novo hearing was held before an
    administrative law judge (ALJ). In a decision dated March 26, 1999, the ALJ
    denied plaintiff’s application at step five of the evaluation process, concluding
    that, while she suffers from severe mental and physical impairments and is unable
    to perform her past relevant work, there are other jobs available in the national
    economy which she can perform. Specifically, the ALJ found that plaintiff
    retains the physical capacity to perform light work and the mental capacity to
    perform semi-skilled work, and that she is therefore capable of working as a
    customer service clerk, file clerk, duplicating machine operator, or receptionist.
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    In October 2000, the Appeals Council of the Social Security
    Administration denied plaintiff’s request for review of the ALJ’s decision.
    Plaintiff then filed a complaint and a motion to reverse or remand the
    administrative agency decision in the United States District Court for the District
    of New Mexico. After independently reviewing the entire record, a magistrate
    judge recommended to the district court that plaintiff’s motion to reverse or
    remand be denied. In October 2001, the district court entered an order overruling
    plaintiff’s objections to the magistrate judge’s recommendation, and the court
    adopted the magistrate judge’s recommendation and denied plaintiff’s motion to
    reverse or remand the administrative agency decision. This appeal then followed.
    II.
    “To qualify for disability benefits, a claimant must establish a severe
    physical or mental impairment expected to result in death or last for a continuous
    period of twelve months which prevents the claimant from engaging in substantial
    gainful activity.”   Thompson v. Sullivan , 
    987 F.2d 1482
    , 1486 (10th Cir. 1993)
    (citation omitted). The Commissioner has established a five-step sequential
    evaluation process for determining whether a claimant is disabled.    
    Id.
     Here, the
    ALJ denied benefits at step five. At step five, a claimant has established that he
    has a severe impairment which prevents him from returning to his past relevant
    work, and “the burden shifts to the [Commissioner] to show that the claimant
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    retains the residual functional capacity (RFC) to do other work that exists in the
    national economy.”    
    Id. at 1487
    .
    In this case, the ALJ found that the Commissioner met his burden at step
    five, and the Appeals Council denied plaintiff’s request for review, rendering the
    decision of the ALJ the final decision of the Commissioner.       See Hargis v.
    Sullivan , 
    945 F.2d 1482
    , 1486 (10th Cir. 1991). We review the Commissioner’s
    decision to determine only whether her factual findings are supported by
    substantial evidence and whether she applied the correct legal standards.      
    Id.
    “Substantial evidence is such relevant evidence as a reasonable mind might accept
    as adequate to support a conclusion.”    
    Id.
     “Evidence is insubstantial if it is
    overwhelmingly contradicted by other evidence.”        O’Dell v. Shalala , 
    44 F.3d 855
    ,
    858 (10th Cir. 1994). In reviewing the record, we neither reweigh the evidence
    nor substitute our judgment for that of the Commissioner.       Hargis , 
    945 F.2d at 1486
    . However, the record to be considered on review includes all of the
    evidence before the Appeals Council, including any new evidence that was not
    before the ALJ.   O’Dell , 
    44 F.3d at 859
    .
    III.
    Plaintiff contends the ALJ committed two errors that require us to reverse
    the district court’s affirmance of the ALJ’s denial of benefits. First, plaintiff
    claims the ALJ ignored the testimony of the vocational expert (VE), in response
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    to three separate hypothetical questions, that there are no jobs in the economy
    which plaintiff is capable of performing.   1
    Second, plaintiff claims the ALJ failed
    to give controlling weight to the opinions of her treating physicians.
    1. Testimony of the VE
    At the hearing before the ALJ, the ALJ asked the VE the following
    hypothetical question:
    What impact on the–either the availability of [customer service clerk,
    file clerk, duplicating machine operator, or receptionist] jobs or the
    transferability of those skills would a limitation of seriously limited,
    but not precluded in terms of ability to relate to co-workers, deal
    with the public or interact with supervisors have?
    Aplt. App., Vol. I, at 71. The VE responded that “[s]eriously limited in those
    jobs, she would–there aren’t any of those jobs that she could perform because
    they’re all dealing with the public, supervisors and co-workers.”      
    Id.
     The ALJ
    then asked the VE another hypothetical question:
    What impact do you have if you take those factors I’ve just outlined,
    seriously limited, but not precluded in terms of ability to deal with
    co-workers, relate to public, interact with supervisors. Throw into
    1
    In her opening brief, plaintiff also claims the ALJ committed reversible
    error because her hypothetical questions to the VE failed to include certain
    physical limitations which had been identified by her treating physicians.
    However, in the objections she filed to the magistrate judge’s proposed findings
    and recommended disposition, see Aplt. App., Vol. II, at 80-83, plaintiff failed to
    object to the magistrate judge’s proposed findings and recommended disposition
    on this ground, and she therefore waived the VE/physical limitations issue for
    purposes of this appeal.  See Key Energy Res. Inc. v. Merrill (In re Key Energy
    Res. Inc.) , 
    230 F.3d 1197
    , 1199-1200 (10th Cir. 2000).
    -5-
    the mix the seriously limited but not precluded in terms of ability to
    behave in an emotionally stable manner, relate predictably in social
    situations and deal with work stresses? What impact does that have
    on the availability of jobs?
    Id. at 72. The VE responded by stating that these limitations “would eliminate all
    the jobs.” Id.
    In addition, plaintiff’s counsel asked the VE the following hypothetical
    question:
    I want you to assume then the testimony of the claimant and her
    daughter about emotional problems that she’s presented both at home
    and work, in a work setting, and assume that she would have
    problems in completing a normal work day, accepting instructions
    and responding appropriately to criticism, getting long [sic] with
    co-workers and peers without distracting them or exhibiting
    behavioral extremes and responding appropriately to changes in the
    work setting. Making those assumptions, would the claimant be able
    to do any of her past relevant work or any of the suggested jobs
    you’ve come up with?
    Id. at 73. The VE’s response to this question was “[n]o.”   Id.
    It is well established that an ALJ “may not ask a vocational expert a
    hypothetical question based on substantial evidence and then ignore unfavorable
    answers.” Campbell v. Bowen , 
    822 F.2d 1518
    , 1523 n.6 (10th Cir. 1987).
    Plaintiff claims the ALJ violated this rule because, in his decision denying
    benefits, he found that plaintiff has severe mental impairments, consisting of an
    adjustment disorder, a borderline personality disorder, and depression, but he then
    failed to discuss the VE’s unfavorable answers to the hypothetical questions. As
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    a result, according to plaintiff, the ALJ erroneously concluded that her mental
    impairments would not prevent her from performing the four semi-skilled jobs
    identified by the VE as involving skills that were transferable from her prior work
    experience.
    After thoroughly analyzing plaintiff’s medical records, the opinions of her
    treating physicians, the opinions of the consulting physicians retained by the
    Commissioner, and the other evidence in the administrative record, the magistrate
    judge concluded as follows:
    In this case, the ALJ found the Plaintiff’s testimony and other
    evidence did not credibly establish symptoms of functional
    limitations to the extent alleged. His hypothetical question assumed
    that Plaintiff was seriously limited in the ability to relate to
    co-workers, deal with the public, and interact with supervisors. . . .
    Although the VE furnished an unfavorable answer, the ALJ’s
    question was not supported by the record. Therefore, even though
    the ALJ included within his questions pertaining to an individual
    with seriously limiting emotional problems at the hearing, he was not
    required to rely upon the VE’s answer if he later discredited the
    Plaintiff’s alleged limitations. I cannot say the [ALJ’s] decision is
    unsupported by substantial evidence.
    Aplt. App., Vol. II, at 76 (citations omitted).
    Plaintiff argues that the magistrate judge’s analysis is flawed because the
    limitations set forth in the hypothetical questions were supported by: (1) the
    medical records and mental impairment evaluations of her treating psychologist,
    Dr. Harmon, 
    id.
     , Vol. I, at 197-201, 252-53, 284-85; (2) the mental impairment
    evaluation completed by her treating physician, Dr. Carabajal,   id. at 254-55; and
    -7-
    (3) “[t]he evidence of psychiatric problems with past employers, and the loss of
    two jobs due to emotional instability,” Opening Br. at 15.
    We are not convinced the ALJ erred in determining that the limitations set
    forth in the hypothetical questions were not supported by the record. First,
    Dr. Harmon determined in June 1996, November 1996, and February 1997 that
    plaintiff was unable to work due to her mental impairments.         See Aplt. App., Vol.
    I, at 198-201. The ALJ correctly noted, however, that Dr. Harmon “provided no
    formal or detailed mental status evaluation [to support his opinion],”      id. at 24,
    and that “his basis for reaching this conclusion is not clear from the evidence in
    the record,” id. Further, in the subsequent mental impairment evaluations he
    prepared in February 1998 and November 1998,         2
    Dr. Harmon listed a number of
    limitations that plaintiff would have to overcome if she returned to work, and he
    rated her mental limitations as moderate/severe.         Id. at 252-53, 284-85.
    Nonetheless, he concluded that the limitations did not preclude employment.              Id.
    Second, we agree with the magistrate judge that the ALJ properly
    discounted the opinions set forth in Dr. Carabajal’s mental impairment evaluation.
    Id. at 254-55. Dr. Carabajal is a board-certified family practitioner,      id. at 257,
    2
    After the ALJ issued his decision, Dr. Harmon prepared another mental
    impairment evaluation in May 1999 which was submitted to the Appeals Council.
    See Aplt. App., Vol. I, at 8, 307-08. However, while plaintiff cites to the May
    1999 evaluation in her reply brief, she has not raised any specific issues regarding
    that evaluation.
    -8-
    and there is no evidence in the record indicating that Dr. Carabajal treated
    plaintiff for her mental impairments. Instead, the record indicates that she treated
    plaintiff for her back and stomach problems.     Id. at 245-51, 259-66, 271-74. As a
    result, even if plaintiff is correct that Dr. Carabajal is permitted under state law to
    provide psychiatric services,   see, e.g., Sprague v. Bowen , 
    812 F.2d 1226
    , 1232
    (9th Cir. 1987), we cannot say the ALJ acted improperly in giving greater weight
    to the opinions and conclusions of Dr. Harmon and Dr. Hughson, the consulting
    psychiatrist retained by the Commissioner, “both of whom are mental health
    professionals and both of whom essentially found [plaintiff] capable of working.”
    Aplt. App., Vol. I, at 26.
    Third, plaintiff’s prior work history does not establish that she is incapable
    of working as a result of her mental impairments and her related
    anger-management problem. According to plaintiff’s own testimony, she was
    fired from her most recent job after an emotional confrontation with her boss, but
    she acknowledged that the confrontation was precipitated by her boss’s abusive
    behavior and was also related to stress she was experiencing at the time caused by
    medical problems and problems with her teenage daughter.        Id. at 45-47. And,
    while plaintiff testified that she had problems interacting with her co-workers at
    another prior job, she does not know why she was fired from that job.      Id. at
    -9-
    47-48, 51-52. Thus, we cannot conclude, based on plaintiff’s prior work history,
    that she is permanently disabled due to her mental impairments.
    Finally, the record shows that, since the time of her last employment,
    plaintiff has been receiving reasonably effective treatment for her depression and
    related anger-management problem, and that there has been a gradual, but
    marked, improvement in her mental condition. As a result, while we do not
    question whether plaintiff actually suffers from depression and a related
    anger-management problem, we fully concur with the following conclusions of
    the ALJ:
    It is clear from this record that much of [plaintiff’s] symptomatology
    consists of anger and explosive outbursts associated with an inability
    to control her emotions. While it is true that anger can interfere
    significantly with work, at the same time this is ultimately a problem
    of attitude and emotion. There is nothing in the record which would
    suggest that [plaintiff’s] condition is not responsive to control
    through counseling, medication, and self-discipline, or that it has
    ever resulted in a degree of limitation as to be considered disabling
    under the Social Security Act. The record generally shows that
    [plaintiff’s] mental impairments are responsive to medication,
    counseling, and changes in [her] life circumstances. The record
    likewise describes her treatment regimen as effective and helpful.
    Any finding of disability on the basis of [plaintiff’s] alleged mental
    impairments would fly in the face of the record as a whole and the
    Social Security Act and Regulations.
    Id. at 26-27.
    -10-
    2. Opinions of Plaintiff’s Treating Physicians
    Plaintiff contends the ALJ erred by failing to give controlling weight to the
    opinions of her treating physicians, Dr. Harmon, Dr. Carabajal, and Dr. Dorin.   3
    With respect to Dr. Harmon and Dr. Carabajal and their opinions regarding the
    work limitations resulting from plaintiff’s mental impairments, we explained
    above why their opinions are not supported by substantial evidence in the record,
    and we will not repeat that discussion here. Instead, we need only determine
    whether the ALJ erred in failing to give controlling weight to the opinions of
    plaintiff’s treating physicians concerning her alleged physical impairments and
    related limitations.
    A treating physician’s opinion is not dispositive on the ultimate issue of
    disability.   Castellano v. Sec’y of Health & Human Servs.    , 
    26 F.3d 1027
    , 1029
    (10th Cir. 1994). Nonetheless, an ALJ must comply with specific requirements
    before rejecting the opinions of a claimant’s treating physicians, and we have
    explained the process as follows:
    An ALJ is required to give controlling weight to a treating
    physician’s well-supported opinion, so long as it is not inconsistent
    3
    Plaintiff also claims the ALJ erred in failing to give controlling weight to
    the opinions of Dr. Olivares, another of her treating physicians. However, we
    need not address this claim since there is no indication in the record that
    Dr. Olivares provided any specific opinions, or diagnoses, concerning plaintiff’s
    alleged mental or physical impairments.    See Aplt. App., Vol. I, at 267-70,
    275-77.
    -11-
    with other substantial evidence in the record. When an ALJ decides
    to disregard a medical report by a claimant’s physician, he must set
    forth specific, legitimate reasons for his decision. Further, there are
    several specific factors the ALJ must consider, including: (1) the
    length of the treatment relationship and the frequency of
    examination; (2) the nature and extent of the treatment relationship,
    including the treatment provided and the kind of examination or
    testing performed; (3) the degree to which the physician’s opinion is
    supported by relevant evidence; (4) consistency between the opinion
    and the record as a whole; (5) whether or not the physician is a
    specialist in the area upon which an opinion is rendered; and
    (6) other factors brought to the ALJ’s attention which tend to support
    or contradict the opinion.
    Drapeau v. Massanari , 
    255 F.3d 1211
    , 1213 (10th Cir. 2001) (citations and
    quotations omitted).
    The record indicates that plaintiff was involved in a car accident in
    November 1997, and she subsequently complained of back and neck pain.
    Following the accident, she was treated by a chiropractor, Dr. Simons, and by
    Dr. Carabajal, and she was eventually diagnosed by Dr. Wilson, an orthopedic
    specialist, as suffering from degenerative disc disease, with a superimposed
    cervical strain, along with mechanical low back pain, with a superimposed strain.
    See Aplt. App., Vol. I, at 260. Radiology reports also indicated that she had a
    small focal disc bulge in her lumbar spine without evidence of herniation and a
    possible cervical spondylosis.   Id. at 247, 262.
    The ALJ found that, while plaintiff’s back and neck problems constitute
    severe physical impairments, she still retains the capacity to perform light work.
    -12-
    Id. at 29-31. The governing regulations define light work as involving lifting no
    more than twenty pounds at a time, with frequent lifting or carrying of objects
    weighing up to ten pounds, and a good deal of walking or standing, or sitting with
    some pushing and pulling of arm or leg controls.       See 
    20 C.F.R. §§ 404.1567
     and
    416.967. Plaintiff contends the ALJ’s finding that she can perform light work is
    erroneous, and that the ALJ committed reversible error by discounting the
    opinions of Dr. Carabajal and Dr. Dorin regarding her physical limitations.
    In July 1998, Dr. Carabajal completed a physical impairment evaluation
    concerning plaintiff’s back and neck problems.       See Aplt. App., Vol. I, at 256.
    She concluded that: (1) plaintiff could occasionally lift and/or carry twenty
    pounds; (2) plaintiff could frequently lift and/or carry less than ten pounds;
    (3) plaintiff could stand and/or walk for at least two hours in an eight-hour work
    day; (4) plaintiff could sit for less than six hours in an eight-hour work day; and
    (5) plaintiff has a limited ability to push and/or pull with her lower extremities
    due to weak lower muscles.     
    Id.
    In April 1999, after the ALJ issued his decision, Dr. Dorin also prepared a
    physical impairment evaluation for plaintiff.      
    Id. at 306
    . Dr. Dorin’s evaluation
    was submitted to the Appeals Council,     
    id. at 8
    , and she concluded that:
    (1) plaintiff could frequently lift and/or carry less than ten pounds; (2) plaintiff
    could stand and/or walk less than two hours in an eight-hour work day;
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    (3) plaintiff must periodically alternate between sitting and standing to relieve
    pain or discomfort; and (4) plaintiff has a limited ability to push and/or pull with
    her upper and lower extremities.    
    Id. at 306
    .
    Although the limitations set forth in Dr. Carabajal’s and Dr. Dorin’s
    evaluations are arguably inconsistent with an ability to perform light work, we
    agree with the ALJ that the conclusions set forth in Dr. Carabajal’s evaluation are
    not supported by her clinical notes or the record as a whole, and we hold that
    Dr. Dorin’s evaluation is similarly unsupported by the record.   4
    Specifically, as
    summarized by the ALJ:
    When Dr. Carabajal examined [plaintiff] on December 29, 1997, she
    reported no tenderness or spasm in [plaintiff’s] back and she said
    medication had improved both her back and rib pain. On March 5,
    1998 [plaintiff] told Dr. Carabajal that her back was doing much
    better, and examination of the spine again showed no abnormalities.
    Radiographic evidence showed some degenerative changes in the
    cervical area, but no significant abnormalities elsewhere in the spine.
    ....
    [T]he record shows no evidence of a major back problem. . . .
    Physical examinations of the back have been within essentially
    normal limits. [Plaintiff] responded well to physical therapy and
    chiropractic treatments. As noted, she told Dr. Simon in February
    1998 that therapy had really helped her back, and she reported to
    Dr. Carabajal in March 1998 that her back was doing much better.
    4
    We also note that, while plaintiff claims Dr. Dorin continued to treat her
    after she underwent a hysterectomy in 1996 under Dr. Dorin’s care, there are no
    medical records in the record pertaining to any treatment provided by Dr. Dorin
    after 1996.
    -14-
    On February 23, 1998, she cancelled an appointment with Dr. Simon
    because she was in the middle of painting. At the time of her last
    physical examination in August 1998, she offered no complaints of
    back pain and Dr. Olivares reported a normal neurological
    examination. I find that the medical evidence supports a capability
    to perform at least light-level work activity.
    ....
    This finding . . . is consistent with the medical record, which
    documents no major physical impairments or limitations, with
    [plaintiff’s] somewhat sporadic and relatively minimal treatment
    regimen, and with her actual level of activities.
    Aplt. App., Vol. I, at 25, 29 (citations omitted).
    The ALJ’s conclusions are supported by substantial evidence in the record,
    and there is no overwhelming evidence to the contrary. Accordingly, we are
    bound by the ALJ’s conclusions.    See Hargis , 
    945 F.2d at 1486
    .
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
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