Rose v. Colvin ( 2015 )


Menu:
  •                                                                                   FILED
                                                                          United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                          Tenth Circuit
    
                                 FOR THE TENTH CIRCUIT                         December 14, 2015
                             _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
    AUTUMN E. ROSE,
    
          Plaintiff - Appellant,
    
    v.                                                         No. 15-6031
                                                        (D.C. No. 5:13-CV-00887-C)
    CAROLYN W. COLVIN, Acting                                  (W.D. Okla.)
    Commissioner of the Social Security
    Administration,
    
          Defendant - Appellee.
                          _________________________________
    
                                 ORDER AND JUDGMENT*
                             _________________________________
    
    Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
                      _________________________________
    
          Autumn E. Rose seeks reversal of the district court’s judgment upholding the
    
    decision of an administrative law judge (ALJ) to deny her application for social
    
    security disability benefits. We have 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 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 This order and judgment is not binding precedent,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.
                                      I.   BACKGROUND
    
           Ms. Rose claims she is disabled by injuries she sustained in a motor vehicle
    
    accident on May 10, 2008, in which her mother, who was driving the vehicle, died.
    
    Ms. Rose suffered very serious injuries in the accident and required five weeks’
    
    hospitalization, numerous surgeries, and a long recovery period. She alleges
    
    disability due to a shunt in her brain, problems with her left arm, low back and neck
    
    pain, depression, and associated problems. Her insured status for the purpose of
    
    disability insurance benefits expired on December 31, 2010. She was then 27 years
    
    old.
    
           Ms. Rose requested and received a hearing before an ALJ at which she was
    
    represented by counsel. Ms. Rose, her uncle, and a vocational expert (VE) testified.
    
    The ALJ found Ms. Rose’s severe impairments were the residual effects of the
    
    injuries she sustained in the automobile accident: a “close[d] head injury with
    
    contusions that resulted in right lower lateral rectus weakness, skull fracture with the
    
    laceration, C1 and T2 cervical fractures, bilateral rib fractures, sternal fracture, left
    
    clavicle fracture, bilateral pulmonary conclusions [sic], bilateral pneumoth[o]races[,]
    
    liver laceration[, and] obesity.” Aplt. App. vol. II at 12. The ALJ further found that
    
    these impairments did not meet or equal the listings for presumptive disability. The
    
    ALJ then concluded that although Ms. Rose could not perform her past work, she had
    
    the residual functional capacity (RFC) to perform a limited range of sedentary work.
    
    The VE identified jobs a person with Ms. Rose’s RFC could do that existed in
    
    significant numbers in the national economy. Consequently, the ALJ determined at
    
                                                 2
    step five of the controlling five-step sequential evaluation process, see Wall v.
    
    Astrue, 
    561 F.3d 1048
    , 1052 (10th Cir. 2009) (explaining the five-step framework for
    
    determining disability), that Ms. Rose was not disabled under the Social Security
    
    Act. The Appeals Council denied review. Ms. Rose appealed to the district court,
    
    which affirmed the agency’s denial of benefits.
    
                                 II. LEGAL STANDARDS
    
          “We review the district court’s decision de novo and independently determine
    
    whether the ALJ’s decision is free from legal error and supported by substantial
    
    evidence.” Fischer-Ross v. Barnhart, 
    431 F.3d 729
    , 731 (10th Cir. 2005).
    
    “Substantial evidence is more than a mere scintilla and is such relevant evidence as a
    
    reasonable mind might accept as adequate to support a conclusion.” Flaherty v.
    
    Astrue, 
    515 F.3d 1067
    , 1070 (10th Cir. 2007) (internal quotation marks omitted). We
    
    examine the record as a whole, but we do not reweigh the evidence. Id. We also do
    
    not “substitute our judgment for that of the agency.” Bowman v. Astrue, 
    511 F.3d 1270
    , 1272 (10th Cir. 2008) (internal quotation marks omitted).
    
          In this context, “disability” requires both an “inability to engage in any
    
    substantial gainful activity” and a “physical or mental impairment, which provides
    
    reason for the inability.” Barnhart v. Walton, 
    535 U.S. 212
    , 217 (2002) (internal
    
    quotation marks omitted). “Under the Social Security Act, a claimant is disabled if
    
    she is unable to do any substantial gainful activity by reason of any medically
    
    determinable physical or mental impairment which can be expected to last for a
    
    continuous period of not less than 12 months.” Wilson v. Astrue, 
    602 F.3d 1136
    ,
    
                                               3
    1140 (10th Cir. 2010) (ellipsis and internal quotation marks omitted).
    
                                     III. DISCUSSION
    
          On appeal, Ms. Rose advances four challenges to the ALJ’s finding that she is
    
    not disabled: (1) the ALJ did not properly evaluate her mental impairments, (2) the
    
    ALJ failed to develop the record, (3) the ALJ did not properly analyze her obesity,
    
    and (4) the ALJ’s credibility analysis was flawed.
    
       A. Evaluation of Mental Impairments
    
          We first address Ms. Rose’s argument that the ALJ did not properly evaluate
    
    the evidence of her mental impairments. Three consulting psychologists conducted
    
    mental evaluations—Dr. Cruse on December 1, 2008, Dr. Swink on May 7, 2009, and
    
    Dr. Repanshek on May 13, 2010. In addition, two state agency medical consultants,
    
    Dr. Scott and Dr. Lochner, reviewed Ms. Rose’s records and submitted opinions on
    
    her mental condition. The ALJ summarized all of those reports.
    
          Ms. Rose contends the ALJ did not determine that her mental impairments
    
    were severe at step two, so his step four RFC analysis that included mental
    
    limitations was confusing or contradictory. It was not improper for the ALJ to
    
    include non-severe mental limitations in his RFC determination because “even if the
    
    ALJ determines that a claimant’s medically determinable mental impairments are
    
    ‘not severe,’ he must further consider and discuss them as part of his residual
    
    functional capacity (RFC) analysis at step four,” Wells v. Colvin, 
    727 F.3d 1061
    ,
    
    1064 (10th Cir. 2013).
    
    
    
                                               4
          Ms. Rose next points out that at step three the ALJ did not complete a
    
    psychiatric review technique (PRT) form or make the findings about her mental
    
    limitations required by 20 C.F.R. § 404.1520a. This “special technique” requires the
    
    ALJ to evaluate the claimant’s symptoms, signs, and laboratory findings, id.
    
    § 404.1520a(b), and rate in four broad areas the degree of functional limitation, id.
    
    § 404.1520a(c), to determine the severity of the claimant’s mental impairments, id.
    
    § 404.1520a(d). The ALJ must “document application of the technique in the
    
    decision.” Carpenter v. Astrue, 
    537 F.3d 1264
    , 1268 (10th Cir. 2008) (internal
    
    quotation marks omitted).
    
          The ALJ’s decision does not document the required technique, but we
    
    conclude the error was harmless. See Fischer-Ross, 431 F.3d at 734 (finding
    
    harmless error where “confirmed or unchallenged findings made elsewhere in the
    
    ALJ’s decision confirm the step three determination under review”). The ALJ
    
    determined at step four that Ms. Rose’s psychological impairments limited her ability
    
    to sustain concentration such that she could perform only unskilled work and “she
    
    must work in a relatively isolated environment with limited contact with peers and
    
    supervisors and the general public.” Aplt. App. vol. II at 13. The ALJ’s assessment
    
    of Ms. Rose’s mental impairments is consistent with the opinions of Drs. Cruse,
    
    Swink, Repanshek, Scott, and Lochner.1
    
    
          1
             Ms. Rose argues that Dr. Lochner’s PRT form designating “moderate”
    limitations in various activities and functioning indicated a “severe” mental
    impairment. We do not find this argument persuasive given Dr. Lochner’s opinion
                                                                                (continued)
                                               5
          Ms. Rose does not cite to evidence that her mental impairments met a listing,
    
    but argues only that Dr. Cruse’s December 2008 global assessment of functioning
    
    (GAF) of 402 could support a finding that her mental impairments met listing 12.02
    
    or 12.04. See 20 C.F.R. pt. 404, Subpt. P, App. 1. The low GAF score, standing
    
    alone, is insufficient because the Commissioner does not consider GAF scores to
    
    “have a direct correlation to the severity requirements in our mental disorders
    
    listings,” Revised Medical Criteria for Evaluating Mental Disorders and Traumatic
    
    Brain Injury, 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000), and the current
    
    Diagnostic and Statistical Manual of Mental Disorders, 16 (5th ed. 2013) has
    
    discontinued its use because of “its conceptual lack of clarity . . . and questionable
    
    psychometrics in routine practice.”
    
          Ms. Rose further argues that because the ALJ did not state the weight he gave
    
    each psychological opinion, his decision cannot be upheld. But as noted above, the
    
    mental-status evidence supports the ALJ’s RFC determination. “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.” Howard v. Barnhart, 
    379 F.3d 945
    , 947 (10th Cir. 2004). Thus, no reasonable factfinder could conclude that
    
    Ms. Rose’s mental limitations met a listing.
    
    that Ms. Rose’s “current cognitive deficits appear to be non-severe.” Aplt. App.
    Vol. IV at 660.
          2
           “The GAF is a subjective determination based on . . . the clinician’s
    judgment of the individual’s overall level of functioning.” Langley v. Barnhart,
    
    373 F.3d 1116
    , 1122 n. 3 (10th Cir. 2004) (internal quotation marks omitted).
    
                                                6
       B. Failure to Develop the Record
    
          Ms. Rose requested the ALJ to order an additional consultative psychological
    
    evaluation for the purpose of administering a specific test: the Luria-Nebraska
    
    Neuropsychological Battery. While acknowledging that she had three consultative
    
    psychological examinations by Drs. Cruse, Swink and Repanshek, she contends that
    
    none of those examinations adequately addressed her cognitive limitations.
    
    Consequently, she contends the ALJ failed in his duty to develop the record by
    
    refusing to order the test she requested.
    
          A social-security claimant bears the burden to establish her disability. Wall,
    
    561 F.3d at 1062. The procedure is nonadversarial and “the ALJ has a duty to ensure
    
    than an adequate record is developed during the disability hearing consistent with the
    
    issues raised.” Id. at 1062-63 (internal quotation marks omitted). Even so, the duty
    
    “is not unqualified.” Id. at 1063.
    
          The psychological evaluators administered various cognitive tests and
    
    analyzed the results. In addition to the evaluators’ analyses, two non-examining state
    
    agency consultants reviewed the records. The evidence does not indicate that
    
    Ms. Rose suffers from a severe cognitive impairment or mental-functioning
    
    limitations not accounted for in the RFC assessment. Consequently, “there was no
    
    need to further develop the record because sufficient information existed for the ALJ
    
    to make [his] disability determination.” Cowan v. Astrue, 
    552 F.3d 1182
    , 1187
    
    (10th Cir. 2008).
    
    
    
                                                7
       C. Evaluation of Obesity
    
          Next, Ms. Rose faults the ALJ for his evaluation of her obesity. She claims
    
    that although the ALJ found her obesity to be a severe impairment, he failed to
    
    properly consider its effects in formulating her RFC.
    
          The ALJ is required to consider the effects of obesity when assessing the
    
    claimant’s RFC. See SSR 02-1p, 
    2002 WL 34686281
    , at *1 (Sept. 12, 2002). The
    
    ALJ may not, however, “make assumptions about the severity or functional effects of
    
    obesity combined with other impairments.” Id. at *6. Rather, the ALJ must
    
    “evaluate each case based on the information in the case record.” Id. The ALJ did
    
    not specifically mention obesity in the RFC determination, but included specific
    
    limitations and restrictions for stooping, kneeling, and crouching.
    
          Ms. Rose points to no medical evidence indicating that her obesity resulted in
    
    functional limitations. Moreover, her hearing testimony did not describe limitations
    
    due to obesity. She testified that she can bend at the waist and she can squat,
    
    although her knees bother her due to injuries from the accident. Therefore, “the
    
    factual record does not support [Ms. Rose’s] position that her obesity, either alone or
    
    in combination with other conditions, precludes her from performing [a limited range
    
    of sedentary] work.” Howard, 379 F.3d at 948.
    
       D. Credibility Determination
    
          Finally, Ms. Rose asserts that the ALJ erred in his analysis of her pain and
    
    subjective complaints. “Credibility determinations are peculiarly the province of the
    
    finder of fact, and we will not upset such determinations when supported by
    
                                               8
    substantial evidence. However, findings as to credibility should be closely and
    
    affirmatively linked to substantial evidence and not just a conclusion in the guise of
    
    findings.” Newbold v. Colvin, 
    718 F.3d 1257
    , 1267 (10th Cir. 2013) (internal
    
    quotation marks omitted). The framework for evaluating a claimant’s evidence of
    
    pain is: “(1) whether Claimant established a pain-producing impairment by objective
    
    medical evidence; (2) if so, whether there is a loose nexus between the proven
    
    impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether,
    
    considering all the evidence, both objective and subjective, Claimant’s pain is in fact
    
    disabling.” Wilson, 602 F.3d at 1144 (internal quotation marks omitted).
    
          The ALJ determined that Ms. Rose’s medically determinable impairments
    
    could reasonably be expected to cause pain and discomfort. The ALJ then itemized
    
    the reasons he found her pain claims not entirely credible, referring to both physical
    
    and psychological symptoms.
    
          Ms. Rose argues that the ALJ erred in not discussing her testimony regarding
    
    her subjective complaints, but she cites to no testimony establishing that those
    
    complaints were disabling or even severe. She stated that she has constant headaches
    
    and dizzy spells, her shoulder gives her constant pain, her neck and back are sore and
    
    stiff, and it takes her a little longer to work through her school work. She also
    
    testified that she is attending automotive-repair school, she sleeps eight to ten hours a
    
    night, she is not taking medication, and she is able to use public transportation. She
    
    did not claim that any of her subjective complaints are so severe that they interfere
    
    with her ability to work. See Thompson v. Sullivan, 
    987 F.2d 1482
    , 1488 (10th Cir.
    
                                                9
    1993) (stating “pain must interfere with the ability to work”). “[D]isability requires
    
    more than mere inability to work without pain.” Brown v. Bowen, 
    801 F.2d 361
    , 362
    
    (10th Cir. 1986).
    
           The ALJ found Ms. Rose’s testimony concerning her subjective complaints not
    
    entirely credible. This determination is affirmatively linked to substantial evidence
    
    in the record including: the hearing testimony described above; medical findings
    
    demonstrating that she can perform sedentary to light work3 and has a full range of
    
    motion in her joints with decreased back flexion; psychological findings indicating
    
    that she has normal thought processes and borderline to low-average intellectual
    
    functioning; and a finding that her ability to engage in activities of daily living is not
    
    so eroded as to prohibit all work. Therefore, the ALJ’s credibility determination was
    
    supported by substantial evidence.
    
                                      IV. CONCLUSION
    
        The judgment of the district court is affirmed.
    
    
    
                                                 Entered for the Court
    
    
                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge
    
    
    
    
           3
            The applicable regulations provide that a person who can do light work can
    also do sedentary work. 20 C.F.R. § 404.1567(b).
    
                                                10