Akers v. Colvin , 556 F. App'x 754 ( 2014 )


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  •                                                                 FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                         May 21, 2014
    Elisabeth A. Shumaker
    Clerk of Court
    MICHAEL A. AKERS,
    Plaintiff - Appellant,
    v.                                                          No. 13-5128
    (D.C. No. 4:12-CV-00489-FHM)
    CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
    Commissioner, Social Security
    Administration,
    Defendant - Appellee.
    ORDER AND JUDGMENT*
    Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
    Michael A. Akers appeals from an order of the magistrate judge affirming the
    Commissioner’s decision to deny social security supplemental security income
    (“SSI”) benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
    § 405(g), we affirm.
    *
    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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    Mr. Akers filed for SSI benefits alleging disability due to psychosis and
    bipolar disorder. The Commissioner denied benefits, both initially and on
    reconsideration. Mr. Akers then received a hearing before an administrative law
    judge (“ALJ”), at which he was represented by counsel. The ALJ concluded that
    Mr. Akers had a severe impairment of affective mood disorder, but that he retained
    the residual functional capacity (“RFC”) to perform medium, light and sedentary
    work, but he could not climb ropes, ladders, scaffolds, or work in environments that
    exposed him to unprotected heights or dangerous moving machinery parts. The ALJ
    found that Mr. Akers could understand, remember, and carry out simple to
    moderately detailed instructions in a work setting, and interact with coworkers and
    supervisors under routine supervision, but could interact with the public only
    occasionally in person or by telephone. After considering testimony from a
    vocational expert, the ALJ concluded Mr. Akers could perform his past relevant work
    as a warehouse laborer and ice cream freezer assistant, and could also perform other
    jobs existing in significant numbers in the national economy. The Appeals Council
    denied Mr. Akers’ request for review. Mr. Akers appealed to the district court, and
    the magistrate judge, sitting by consent, affirmed.
    “We review the Commissioner’s decision to determine whether the factual
    findings are supported by substantial evidence and whether the correct legal
    standards were applied.” Robinson v. Barnhart, 
    366 F.3d 1078
    , 1080 (10th Cir.
    2004) (internal quotation marks omitted). On appeal, Mr. Akers argues that the ALJ
    -2-
    failed to properly analyze the medical source evidence. The ALJ afforded great
    weight to the medical opinion of Dr. Minor Gordon, Ph.D., a consultative examining
    psychologist, who prepared a detailed report. Dr. Gordon noted that Mr. Akers
    denied any delusions or hallucinations, and appeared attentive and alert. Dr. Gordon
    reported that Mr. Akers’ intelligence was low average, and he would, therefore, have
    some difficulty passing judgment in a work setting depending on the complexity of
    the task, but that he could communicate comfortably, and “should be able to perform
    some type of routine and repetitive task on a regular basis and he certainly could be
    expected to relate adequately with coworkers and supervisors on a superficial level
    for work purposes.” Aplt. App., Vol. 3, at 318. Mr. Akers does not challenge the
    ALJ’s consideration of Dr. Gordon’s evidence.
    The ALJ gave some weight to the mental status form filled out by
    Mr. Caswell, a licensed professional counselor, who stated that Mr. Akers was
    intelligent but immature, had below-average thought processes and trouble focusing,
    and could perform simple tasks. But he opined Mr. Akers could not keep a job
    because he could not handle work pressure or responsibility, would need constant
    supervision, and could not relate to coworkers. 
    Id. at 258.
    Mr. Akers argues the
    ALJ failed to use the factors set out in 20 C.F.R. § 404.1527(c) in considering
    Mr. Caswell’s opinion. We find no error. Licensed professional counselors are not
    “acceptable medical sources”—and thus may not provide medical opinions—but fall
    within the category of “other sources” whose opinions may be considered to show the
    -3-
    severity of a claimant’s impairment. See SSR 06-03p, 
    2006 WL 2329939
    , at 1-2
    (Aug. 9, 2006). “[T]he factors in 20 CFR 404.1527[(c)] . . . explicitly apply only to
    the evaluation of medical opinions from ‘acceptable medical sources,’ [though] these
    same factors can be applied to opinion evidence from ‘other sources.’” 
    Id. at *4.
    With respect to “other sources” evidence, SSR 06-03p states that an ALJ “generally
    should explain the weight given to opinions from these ‘other sources’” or otherwise
    ensure the decision permits a reviewer to follow his or her reasoning. 
    Id. at *6.
    Here, the ALJ complied with SSR 06-03p and other applicable regulations by
    explaining the weight he assigned to Mr. Caswell’s opinion and the reason for that
    weight.
    The ALJ gave very little weight to the opinion of Dr. Johnson-Miller, who
    completed a mental status form two days after the ALJ’s hearing. Dr. Johnson-Miller
    wrote that Mr. Akers “reports” that he could not “respond appropriately to work
    pressure, supervision and co-workers”; “reported irritability and difficulty controlling
    his emotions”; “reports anger outbursts [and] labile mood”; “reported difficulty
    maintaining employment due to bad attitude”; and “reports seeing angels and
    communicating with them.” Aplt. App., Vol. 3, at 448-49. She also opined that
    Mr. Akers could remember, comprehend and carry out directions on an independent
    basis, but displayed poor focus, grandiosity and religiosity, 
    id. at 448,
    and appeared
    to display disorganized thought pattern and loose associations, 
    id. at 449.
    -4-
    The ALJ explained that he gave very little weight to Dr. Johnson-Miller’s
    evidence because it was quite conclusory and provided very little explanation of the
    evidence relied upon, and because her opinions departed substantially from the rest
    of the evidence. Mr. Akers argues on appeal that Dr. Johnson-Miller’s report was not
    conclusory. We disagree. Dr. Johnson-Miller expressly relied quite heavily on
    Mr. Akers’ subjective complaints and provided little or no explanation of the basis of
    her conclusions, thus, the ALJ was entitled to give her report little weight. See
    Bernal v. Bowen, 
    851 F.2d 297
    , 301 (10th Cir. 1988) (holding that “a treating
    physician’s opinion may be rejected if it is brief, conclusory and unsupported by
    medical evidence”). We find no merit in Mr. Akers’ claim that the ALJ ignored
    Dr. Johnson-Miller’s mental RFC findings; those findings are for recording summary
    conclusions and are included and reported in her mental status form, which the ALJ
    thoroughly discussed. Mr. Akers also argues that the ALJ relied improperly on
    speculation and boilerplate when he mentioned the possibility “that a doctor may
    express an opinion in an effort to assist a patient with whom he or she sympathizes
    for one reason or another” and that “patients can be quite insistent and demanding in
    seeking supportive notes or reports from their physicians.” Aplt. App., Vol. 2, at 25.
    These comments clearly do not constitute the sole basis for the weight the ALJ
    assigned to Dr. Johnson-Miller’s opinion, and the ALJ properly provided a fuller,
    and more specific explanation for his evaluation of this evidence. See Mays v.
    Colvin, 
    739 F.3d 569
    , 577 (10th Cir. 2014) (use of same boilerplate observation not
    -5-
    improper where it was not the sole basis of the assigned weight and did not detract
    from ALJ’s further explanation).
    Next, Mr. Akers argues the ALJ erred by not expressly discussing a mental
    status form completed in November 2009 by a treatment provider at the Grand Lake
    Mental Health Center, where Mr. Akers had been treated on an outpatient basis. This
    treatment provider’s signature is illegible and the form does not indicate who
    completed it or the provider’s medical credentials. This provider opined that
    Mr. Akers displayed an ability to think, reason, and respond; to remember,
    comprehend and carry out instructions; and to respond to work pressure, supervision
    and coworkers, but also had a poor ability to relate to others and could not handle
    funds. Aplt. App., Vol. 3, at 313. We agree with the magistrate judge’s conclusion
    that this provider’s form supports, and does not contradict, the ALJ’s RFC finding.
    Thus, we find no reversible error in the ALJ’s failure to discuss this opinion. See
    
    Mays, 739 F.3d at 578-79
    (“[A]n ALJ’s failure to weigh a medical opinion involves
    harmless error if there is no inconsistency between the opinion and the ALJ’s
    assessment of residual functional capacity.”); see also Howard v. Barnhart, 
    379 F.3d 945
    , 947 (10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence
    unfavorably in order to determine a claimant’s RFC, the need for express analysis is
    weakened.”). For the same reason, we conclude the ALJ’s failure to discuss the
    assessments of two state agency psychologists, Drs. Holloway and Kampschaefer,
    was harmless error. Both concluded that Mr. Akers’ mental impairment was
    -6-
    non-severe, which is less favorable to Mr. Akers than the ALJ’s conclusion that
    Mr. Akers did have a severe mental impairment. When the ALJ’s RFC is “generally
    consistent” with the findings in an opinion, or if the RFC is “more favorable” to the
    claimant than the medical sources’ findings, then “[t]here is no reason to believe that
    a further analysis or weighing of [the] opinion could advance [the claimant’s] claim
    of disability.” Keyes-Zachary v. Astrue, 
    695 F.3d 1156
    , 1162-63 (10th Cir. 2012).
    Finally, we find no error in the ALJ’s discussion and consideration of the
    statements and testimony from Mr. Akers’ parents. The ALJ discussed much of their
    testimony and statements and it is clear from the ALJ’s decision that he considered
    all of their evidence. Mr. Akers is essentially arguing that because the ALJ did not
    discuss each piece of evidence, he did not consider it. But an ALJ is not required to
    “reference everything in the administrative record.” Wilson v. Astrue, 
    602 F.3d 1136
    ,
    1148 (10th Cir. 2010).
    The judgment of the district court is affirmed.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    -7-
    

Document Info

Docket Number: 13-5128

Citation Numbers: 556 F. App'x 754

Judges: Anderson, Baldock, Holmes

Filed Date: 5/21/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023