Duncan v. Colvin , 608 F. App'x 566 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 2, 2015
Elisabeth A. Shumaker
Clerk of Court
ELIZABETH DUNCAN,
Plaintiff - Appellant,
v. No. 14-5081
(D.C. No. 4:13-CV-00189-FHM)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.
Elizabeth Duncan appeals the district court’s order affirming the
Commissioner’s decision denying her application for disability benefits under the
Social Security Act. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g), and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
Ms. Duncan formerly worked for six years as a master teacher at a daycare
facility. In 2009, she was diagnosed with bilateral carpal tunnel syndrome. She
underwent right carpal tunnel surgery, involving decompression of the right median
nerve at the wrist, and right cubital tunnel surgery, involving decompression of the
right ulnar nerve at the elbow, in October 2009. She had left carpal and cubital
tunnel surgeries in November 2009. She filed for disability benefits in November
2009 alleging disability since October 18, 2009, due to diabetic neuropathy and post
carpal tunnel surgeries. The Commissioner denied benefits initially and on
reconsideration.
Following a de novo hearing and a supplemental hearing before an
Administrative Law Judge (“ALJ”), the ALJ issued his decision in November 2011,
finding Ms. Duncan not disabled at step five of the controlling five-step sequential
analysis. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (explaining
five-step process for evaluating claims for disability benefits). At step one the ALJ
found Ms. Duncan had not engaged in substantial gainful activity since the alleged
onset of her disability. The ALJ concluded at step two that Ms. Duncan had the
following severe impairments: diabetes mellitus with diabetic neuropathy, mild
carpal tunnel syndrome bilaterally, degenerative disc disease of the cervical spine,
osteoarthritis, hypertension, hyperlipidemia, and major depressive disorder. But he
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found that these impairments did not meet or equal the listings for presumptive
disability at step three.
The ALJ also found Ms. Duncan not credible and determined that her
impairments left her with a residual functional capacity (“RFC”) to perform a limited
range of sedentary work with certain restrictions. After considering Ms. Duncan’s
RFC and testimony from a vocational expert (“VE”), the ALJ determined at step four
that Ms. Duncan could not return to her past work, but found at step five that she
could perform other jobs existing in significant numbers in the national economy.
The Appeals Council denied review, making the ALJ’s decision the
Commissioner’s final decision for purposes of judicial review. Doyal v. Barnhart,
331 F.3d 758, 759 (10th Cir. 2003). Ms. Duncan sought judicial review and the
magistrate judge, sitting by consent of the parties, affirmed the Commissioner’s
decision. She now appeals.
II. Discussion
“We review 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). In doing so, “we neither reweigh the evidence nor substitute our judgment for
that of the agency.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. It requires
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more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (citation
omitted) (internal quotation marks omitted).
Ms. Duncan raises the following challenges to the Commissioner’s decision:
the ALJ (1) deprived Ms. Duncan of her constitutional right to due process; (2) failed
to properly evaluate the medical evidence; (3) failed to find that Ms. Duncan met or
equaled Listing 1.04A (Disorders of the Spine); (4) erred at steps four and five of the
sequential analysis; and (5) failed to perform a proper credibility determination.
A. Due Process
Ms. Duncan contends the ALJ violated her due process rights by failing to
make a full and fair inquiry. Indeed, “[s]ocial security hearings are subject to
procedural due process considerations.” Yount v. Barnhart, 416 F.3d 1233, 1235
(10th Cir. 2005); see also Passmore v. Astrue, 533 F.3d 658, 663 (8th Cir. 2008)
(“Procedural due process under the Fifth Amendment requires that disability
claimants be provided a full and fair hearing.” (internal quotation marks omitted)).
But, as the district court observed, Ms. Duncan does not assert a colorable due
process constitutional claim. Instead, her argument is one that asserts that the ALJ
failed to develop the record by failing to order a consultative examination or obtain a
medical source statement. We disagree that the ALJ failed to develop the record.
“[T]he burden to prove disability in a social security case is on the claimant.”
Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Nonetheless, an “ALJ
bears responsibility for ensuring that an adequate record is developed during the
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disability hearing consistent with the issues raised.” Branum, 385 F.3d at 1271(internal quotation marks omitted). And this responsibility may require the ALJ to
order a consultative examination, see Hawkins, 113 F.3d at 1166, but the
determination to do so is given broad latitude, id. at 1169. Such examinations are
often required “where there is a direct conflict in the medical evidence”; “where the
medical evidence in the record is inconclusive”; and “where additional tests are
required to explain a diagnosis already contained in the record.” Id. at 1166; see also
20 C.F.R. § 404.1519a(b) (describing when a consultative examination may be
appropriate).
During Ms. Duncan’s first administrative hearing in March 2011, her attorney
requested, and the ALJ ordered, additional testing in the form of a bilateral
electromyography/nerve conduction study (EMG/NCS) of the upper and lower
extremities, and bilateral Tinel’s test and Phalen’s test.1 See Aplt. App., Vol. II at
83-86.2 Sri Reddy, M.D. performed a consultative EMG/NCS in May 2011. The
EMG/NCS of the upper limbs revealed “[r]ight mild median nerve entrapment at the
wrist (C[arpal]T[unnel]S[yndrome])” but “[n]o diffuse peripheral neuropathy” or
“any findings to indicate radiculopathy.” Id., Vol. III at 594. The testing of the
lower limbs revealed “[b]ilateral lower extremity sensory peripheral neuropathy” but
1
Tinel’s Sign and Phalen’s Sign are tests performed to diagnose carpal tunnel
syndrome.
2
The record reveals that Ms. Duncan’s attorney and the ALJ also discussed
Ms. Duncan’s need for a cervical magnetic resonance imaging (MRI) scan. See Aplt.
App., Vol. II at 85. This testing was done on September 7, 2011.
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no “findings to indicate radiculopathy.” Id. Dr. Reddy opined this finding was
probably the result of Ms. Duncan’s “long-standing diabetes.” Id.After receiving the results of the study, Ms. Duncan’s counsel requested a
consultative examination and medical source statement to evaluate the “right upper
extremity median nerve entrapment and bilateral lower extremity sensory peripheral
neuropathy.” Id., Vol. II at 260. But the request was not granted. A second
administrative hearing was held in October 2011. At the time of the second hearing,
Ms. Duncan had recently undergone an MRI scan of the cervical spine that revealed
“marked degenerative disc disease” and a “syrinx formation extending from the
C4-C5 to the C6-C7 level.” Id., Vol. III at 696.3
Ms. Duncan argues that without obtaining more information concerning the
functional limitations caused by the conditions found by Dr. Reddy in the May 2011
EMG/NCS and the conditions revealed in the September 2011 MRI testing, the ALJ
could not make an informed RFC assessment. See Aplt. Opening Br. at 20-21. We
disagree. Regarding the EMG/NCS finding of “right median nerve entrapment at the
wrist (C[arpal]T[unnel]S[yndrome]),” the record already contained evidence of
3
“A syrinx is a fluid-filled cavity within the spinal cord (syringomyelia).”
Syrinx of the Spinal Cord or Brain Stem, Merck Manuals,
http://www.merckmanuals.com/professional/neurologic_disorders/spinal_cord_disord
ers/syrinx_of_the_spinal_cord_or_brain_stem.html (last visited March 18, 2015).
“Syringomyelia typically causes weakness, atrophy, and often fasciculations and
hyporeflexia of the hands and arms.” Id.-6-
Ms. Duncan’s bilateral carpal tunnel syndrome. The record also contained an
examining consultative examination, done in January 2010, that opined regarding
Ms. Duncan’s physical limitations concerning her carpal tunnel syndrome, see Aplt.
App., Vol. III at 385, as well as an opinion from another medical source in March
2010 that Ms. Duncan was limited to light duty jobs that did not require repetitive
work with the hands and arms. We conclude that the ALJ did not err by not
obtaining another consultative examination or medical source statement to evaluate
Dr. Reddy’s findings concerning Ms. Duncan’s carpal tunnel syndrome. The record
contained sufficient evidence from which the ALJ could assess Ms. Duncan’s RFC
with respect to her carpal tunnel syndrome. Regarding Dr. Reddy’s finding of
diabetic peripheral neuropathy, Ms. Duncan similarly fails to show that another
consultative examination was necessary.
Ms. Duncan further argues that recent testing “revealed more questions about
neuropathy, radiculopathy, carpal tunnel syndrome, syrengomyelia, and a syrinx” that
should have resulted in further investigation by the ALJ to determine the limitations
of Ms. Duncan’s extremities. Aplt. Opening Br. at 21 (citing Aplt. App., Vol. II at
41-46). Ms. Duncan’s citation to the record evidences that her counsel and the ALJ
discussed a September 2011 MRI scan of the cervical spine in the context of
counsel’s claim that the MRI scan was evidence of meeting Listing 1.04A. See Aplt.
App., Vol. II at 41-42. In this discussion, the ALJ observed that two, separate
EMG/NCS examinations, one performed by consultative examiner Dr. Reddy and the
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other performed at the request of Ms. Duncan’s physician, confirmed carpal tunnel
syndrome and did not evidence any radiculopathy. The ALJ further observed that
although a medical provider, Tulsa Pain Consultants, assessed cervical radiculopathy,
it did not place any work restrictions on Ms. Duncan. See id. at 43. We conclude the
ALJ sufficiently developed the record to determine Ms. Duncan’s RFC.4
B. Medical Source Opinions
Ms. Duncan next argues that the ALJ failed to properly evaluate the medical
opinions of Kenneth Trinidad, D.O., and Carl DePaula, M.D. We find no error.
1. Dr. Trinidad
Dr. Trinidad is an examining physician who evaluated Ms. Duncan in
connection with her worker’s compensation claim in March 2010 and again in April
2011. Ms. Duncan first asserts that the ALJ “ignored or rejected medical findings
without explanation” and ignored those portions of Dr. Trinidad’s reports that were
favorable to her claim. Aplt. Opening Br. at 24. Specifically, she states the ALJ
“failed to note” the following findings from the March 2010 report:
positive Tinel’s sign over the median nerves bilaterally,
crepitance in the wrists with range of motion (‘ROM’)
testing, weakness in flexion and extension of the wrists to
resistance testing, loss of fine motor movement in the
4
Ms. Duncan also points out that although the ALJ agreed at the March 2011
hearing to additional testing for Tinel’s Sign and Phalen’s Sign, there is no indication
that this was done. See Aplt. Opening Br. at 20. Although it appears Ms. Duncan is
correct, the record already contained medical evidence from October 2010 of positive
Tinel’s Sign and Phalen’s Sign testing, which is indicative of carpal tunnel syndrome.
Accordingly, we perceive no error.
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digits, decreased sensation in the first three digits of the
right hand, dyesthesias in the first four digits of the left
hand, decreased sensation in the little finger of the left
hand, tenderness over the medial epicondyles bilaterally,
crepitance in the elbows with movement, positive Tinel’s
sign over the ulnar nerves at the elbows, decreased
sensation in an ulnar distribution into the forearms, and
weakness in forearm strength in supination and pronation
to resistance testing bilaterally.
Id. at 23-24.
But despite Ms. Duncan’s claim of error, while “[t]he record must demonstrate
that the ALJ considered all of the evidence,” there is no requirement that an ALJ
“discuss every piece of evidence.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.
2014). The ALJ did not need to expressly discuss these specific findings of
Dr. Trinidad as they did not involve “uncontroverted evidence” that the ALJ was
choosing not to rely on, nor did they involve “significantly probative evidence” that
he was rejecting, see Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). The
record confirms this.
In connection with the worker’s compensation claim, Dr. Trinidad concluded
that Ms. Duncan had work-related trauma injuries in the form of bilateral carpal
tunnel syndrome. The ALJ’s decision states that “a review of the medical record
indicates” a history of carpal tunnel syndrome and bilateral carpal tunnel syndrome
surgery. Aplt. App., Vol. II at 17. It further reflects that Dr. Trinidad’s March 2010
report was considered in the ALJ’s discussion of the medical evidence. See id. at 18.
And the ALJ found that the medical evidence in the record supported a diagnosis of
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carpal tunnel syndrome as he found mild carpal tunnel syndrome bilaterally as a
severe impairment. We perceive no error in the ALJ’s failure to expressly discuss
the foregoing findings of Dr. Trinidad.
Ms. Duncan also argues that the ALJ failed to adequately explain why he gave
Dr. Trinidad’s opinions provided in the worker’s compensation claim “only some
weight.” Aplt. Opening Br. at 26. We disagree. Dr. Trinidad opined that
Ms. Duncan was temporarily totally disabled. He also opined that “[w]ith her current
impairment [Ms. Duncan] is unable to return to her former position and, in my
opinion, will require vocational training to place her in a light duty job that does not
require repetitive work with her hands and arms.” Aplt. App., Vol. III at 533. The
ALJ explained that such statements, made in the context of a worker’s compensation
claim, are not dispositive of a social security claim. The ALJ also correctly observed
that certain opinions by medical providers, including opinions that a claimant is
disabled or opinions concerning residual functional capacity, are not medical
opinions but, instead, opinions on issues reserved to the Commissioner because they
are administrative findings. See 20 C.F.R. § 404.1527(d). Such opinions, even when
offered by a treating source, are never entitled to controlling weight or given special
significance. Soc. Sec. Ruling (SSR) 96-5p, 1996 WL 374183, at *1, *2, *5 (July 2,
1996).
But Ms. Duncan takes further issue with the ALJ’s handling of Dr. Trinidad’s
opinion that Ms. Duncan is limited to jobs that do not require repetitive use of the
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hands and arms. The record shows that Ms. Duncan specifically questioned the VE
regarding the vocational impact of a limitation to sedentary, unskilled work with no
repetitive use of the arms or hands as expressed in Dr. Trinidad’s report. The VE
testified that no repetitive use equated vocationally to constant use under the
Dictionary of Occupational Titles, but that frequent and occasional use was still
available. The ALJ noted this testimony in his decision. But Ms. Duncan now
contends that there is no evidence that Dr. Trinidad defines “repetitive” in the same
way as the VE and the ALJ therefore should have recontacted Dr. Trinidad.
We find Ms. Duncan’s argument unavailing. Assuming, without deciding this
is a substantial issue, Ms. Duncan did not further question the VE regarding the
meaning of repetitive use or challenge the VE’s interpretation of Dr. Trinidad’s use
of the term such that she raised it as an issue for the ALJ to resolve. See Wall v.
Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009) (observing that claimant must raise any
substantial issue she seeks to develop). Nor did the ALJ deem Dr. Trinidad’s
evidence inadequate for him to determine whether Ms. Duncan was disabled.
See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001); see also Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (noting ALJ’s duty to seek additional
evidence or clarification from treating source when evidence contains conflict or
ambiguity).
In sum, we conclude the ALJ sufficiently explained the weight he gave to
Dr. Trinidad’s opinions and properly considered his opinions.
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2. Dr. DePaula
Dr. DePaula is Ms. Duncan’s treating orthopedic surgeon. Ms. Duncan argues
that the ALJ was “silent” as to the weight accorded Dr. DePaula’s opinions and failed
to follow the sequential two-step inquiry in determining the weight assigned to a
treating source’s medical opinion. Aplt. Opening Br. at 27-28; see also Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (discussing two-step analytical
framework for dealing with treating medical source opinions). In support,
Ms. Duncan states that Dr. DePaula found that she had peripheral neuropathy with
numbness at the wrist, bilateral carpal tunnel syndrome, diabetic neuropathy, and
cervical disc disease but that the ALJ “gave no credit to these assessments and
objective findings.” Aplt. Opening Br. at 28. Ms. Duncan is mistaken. The findings
of Dr. DePaula identified by Ms. Duncan constitute the medical opinion of
Dr. DePaula regarding medical diagnoses, which the ALJ properly considered and
did not reject. See 20 C.F.R. § 404.1527(a)(2) (providing that medical opinions are
statements from physicians that reflect judgments concerning a claimant’s symptoms
and diagnosis). Indeed, the ALJ found diabetes with diabetic neuropathy, mild carpal
tunnel syndrome bilaterally, and degenerative disc disease of the cervical spine to be
severe impairments.
Ms. Duncan does not point to medical opinions of Dr. DePaula regarding
work-related limitations attributed to the impairments he diagnosed or the placement
of any significant exertional restrictions. See, e.g., Watkins, 350 F.3d at 1299
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(assessing treating source medical opinion concerning nature and severity of
impairment that rendered claimant “unable to work an eight-hour day doing anything,
sitting or standing” (internal quotation marks omitted)); Krauser, 638 F.3d at 1330(assessing treating source’s opinion regarding exertional restrictions); 20 C.F.R.
§ 404.1527(a)(2) (providing that physician’s medical opinion may include opinion on
what claimant can still do despite impairments and physical or mental restrictions).
Given that the ALJ did not reject the medical impairments found by Dr. DePaula and
there were no medical opinions regarding Ms. Duncan’s work-related functional
limitations, there was no opinion on such matters by Dr. DePaula for the ALJ to
weigh. Cf. Watkins, 350 F.3d at 1300-01 (reversing judgment of the district court
where ALJ failed to perform analysis regarding weight to assign treating source’s
opinion that claimant could not do anything sitting or standing in eight-hour
workday).
Ms. Duncan further faults the ALJ for failing to credit a parking placard
application in which Dr. DePaula indicated the basis for the application was
Ms. Duncan’s severely limited ability to walk due to her diabetic peripheral
neuropathy. Dr. DePaula did not, however, identify a similar work-related restriction
in his medical notes. In any event, the ALJ’s RFC limited Ms. Duncan to sedentary
work and standing and/or walking to two hours in an eight-hour workday. Finally,
Ms. Duncan’s claim of error regarding Dr. DePaula’s opinion that Ms. Duncan is
disabled and should get vocational rehabilitation is meritless. As the ALJ explained,
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that is an opinion on an issue reserved to the Commissioner and, therefore, is not
entitled to controlling weight or special significance. See 20 C.F.R.
§ 404.1527(d)(3).
C. Listing 1.04A
Ms. Duncan next claims error at step three. Specifically, she asserts that the
ALJ failed to conclude that she met or equaled Listing 1.04A (disorders of the spine)
and failed to properly consider Listing 1.04A at step three because the ALJ did not
mention or discuss it in the step three analysis.
At step three of the sequential analysis, the determination is made 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.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005) (internal quotation marks omitted). If listed, the impairment is
conclusively presumed disabling and the claimant is entitled to benefits. See id. A
claimant will only be presumed disabled if an impairment, or a combination of
impairments, meets or equals all the requirements of a listing. Sullivan v. Zebley,
493 U.S. 521, 530-31 (1990). Further, a claimant has the burden to present evidence
establishing her impairments meet or equal listed impairments. Fischer-Ross,
431 F.3d at 733. But an ALJ bears the burden of identifying any relevant listings in
light of the evidence which a claimant has produced. Id. at 733 n.3.
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Ms. Duncan was diagnosed with degenerative disc disease of the cervical
spine, an impairment that would fall under the listing for disorders of the spine,
Listing 1.04, where the impairment results in the compromise of a nerve root.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. In order for the ALJ to have found
Ms. Duncan’s physical limitation met the required level of severity under Listing
1.04A, Ms. Duncan had to satisfy the following requirements:
[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.
As Ms. Duncan argues, an ALJ is “required to discuss the evidence and
explain why he found that [a claimant] was not disabled at step three.” Clifton,
79 F.3d at 1009. Review of the ALJ’s decision reflects that he discussed and rejected
certain listings applicable to mental impairment in his step three analysis but did not
address or evaluate Listing 1.04A in this part of the decision. Instead, the ALJ’s
discussion of Listing 1.04A, although minimal, appears in his analysis and
determination of Ms. Duncan’s RFC at step four of the sequential analysis. See, e.g.,
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (providing that step four is
comprised of three phases, the first of which determines a claimant’s RFC).
Specifically, the ALJ acknowledged that Ms. Duncan’s counsel argued at the
hearing that Ms. Duncan met or equaled Listing 1.04A based on MRI findings of the
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cervical spine done in September 2011. The ALJ explained, however, that two
EMG/NCS examinations revealed no evidence of radiculopathy or other upper
extremity neuropathy. Although the ALJ should have discussed this evidence and his
rationale in the step three analysis, we cannot say, as Ms. Duncan argues, that the
ALJ “wholly failed to analyze the evidence in light of the specific requirements of
[Listing 1.04A].” Aplt. Opening Br. at 32. Indeed, the Listing requires evidence of
nerve root compression and the ALJ expressly found no evidence of radiculopathy
indicated in the EMG/NCS.5 See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00C(3)
(providing that “electrodiagnostic procedures may be useful in establishing a clinical
diagnosis but do not constitute alternative criteria to the requirements of 1.04”).
But even if the ALJ’s failure to properly consider and discuss the evidence in
support of Listing 1.04A at step three was erroneous, the error was harmless in light
of the ALJ’s findings at subsequent steps of the disability analysis. See
Fischer-Ross, 431 F.3d at 733 (“[A]n ALJ’s findings at other steps of the sequential
process may provide a proper basis for upholding a step three conclusion that a
claimant’s impairments do not meet or equal any listed impairment.”). Presumptive
disability at step three for Listing 1.04A requires nerve root compression resulting in
limited range of motion and motor loss with muscle weakness. The ALJ’s RFC
5
“Cervical radiculopathy is the damage or disturbance of nerve function that
results if one of the nerve roots near the cervical vertebrae is compressed.”
See Cervical Radiculopathy, http://www.webmd.com/pain-management/pain-
management-cervical-radiculopathy (last visited March 18, 2015).
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findings at step four provide, for example, that Ms. Duncan can occasionally lift
and/or carry ten pounds, and she can occasionally climb stairs, balance, bend or
stoop, kneel, crouch, and crawl. This RFC finding negates the possibility of any
finding that Ms. Duncan is conclusively disabled at step three, and, therefore, any
deficiency in the ALJ’s step three analysis is harmless error. See id. at 734-35.
Finally confirming the harmless nature of any error at step three, Ms. Duncan
presented no medically acceptable test showing nerve root compression, a
requirement of Listing 1.04A. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(C)(1)
(providing that diagnosis of musculoskeletal impairment should be supported by
medically acceptable imaging tests, such as x-ray or MRI scan). Because
Ms. Duncan has not satisfied all of the Listing’s criteria, she cannot prevail at step
three as a matter of law. See Sullivan, 493 U.S. at 530.
D. Hypothetical Question to the VE
Ms. Duncan next contends that the ALJ’s hypothetical questions to the VE at
steps four and five of the analysis failed to include all of the limitations established
by the record.6
6
In challenging the ALJ’s hypothetical questions, Ms. Duncan attempts to raise
a sub-issue concerning the ALJ’s step two analysis. Although she does not expressly
assert a step two error, she argues that the ALJ failed to state whether her middle and
ring finger trigger release and anxiety disorder were “severe, non-severe, or
medically non-determinable [impairments].” Aplt. Opening Br. at 33. To the extent
Ms. Duncan attempts to advance an independent challenge to the ALJ’s step two
findings within the context of her steps four and five argument, we decline to
(continued)
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An ALJ’s hypothetical question to the VE must accurately reflect the
“impairments and limitations that were borne out by the evidentiary record.”
Newbold v. Colvin, 718 F.3d 1257, 1268 (10th Cir. 2013) (internal quotation marks
and brackets omitted); Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (stating
that the ALJ’s hypothetical questions “must include all (and only) those impairments
borne out by the evidentiary record”). The ALJ’s RFC finding included a limitation
for “no prolonged overhead gazing.” Aplt. App., Vol. II at 16. Review of the record
shows that the ALJ posed three hypothetical questions to the VE – the first two of
which were limited to light work and the third to sedentary work. See 20 C.F.R.
§ 404.1567(a) and (b) (defining “sedentary work” and “light work”). In the second
hypothetical question to the VE, the ALJ asked the VE to take the same physical
restrictions from the first hypothetical question and add to them certain restrictions to
the hands and arms and “no prolonged overhead gazing.” Aplt. App., Vol. II at 62.
In the third hypothetical question, the ALJ stated that he was using the same
restrictions for the upper extremities but changed the exertional limitations.
Ms. Duncan argues that the “no prolonged overhead gazing” limitation is
missing from the third (and only sedentary) hypothetical question and, therefore, the
VE could have answered the hypothetical question differently. We disagree. Based
consider the issue. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.
2012) (declining to consider poorly developed sub-issues).
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on our review, the third hypothetical question simply built upon the second, which
included the limitation for no prolonged overhead gazing. Additionally,
Ms. Duncan’s counsel questioned the VE regarding the impact of Ms. Duncan’s
limitations in her ability to look up and down and the VE testified in response that
she considered Ms. Duncan’s range of motion limitations in her testimony. We
therefore reject Ms. Duncan’s challenge to the hypothetical question to the VE and
find no error in the ALJ’s reliance on the VE’s opinion.
Ms. Duncan also argues that the ALJ’s RFC finding included a limitation to
superficial contact with coworkers, supervisors, and the public, but that the ALJ did
not include this limitation in the hypothetical question to the VE involving sedentary
work. She argues that the failure to include this limitation was erroneous because the
jobs in the national economy that the VE testified Ms. Duncan could perform in
response to the hypothetical – call-out operator, surveillance-system monitor, and
election clerk – require “significant” contact with people or the public according to
the DOT. Aplt. Opening Br. at 36; see DICOT 237.367-014 (call-out operator), 1991
WL 672186; DICOT 379.367-010 (surveillance-system monitor), 1991 WL 673244;
and DICOT 205.367-030 (election clerk), 1991 WL 671719.
“[E]ach job listed in the DOT is described by reference to various components.
One component [of the DOT occupational code] is ‘Worker Functions.’ The worker
function labeled ‘People’ expresses the degree of interaction with other people that
the job requires.” Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005). The
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three jobs identified by Ms. Duncan have a People rating of 6, indicating that the
worker will be involved in “Speaking-Signaling” which requires “[t]alking with
and/or signaling people to convey or exchange information [and]giving assignments
and/or directions to helpers or assistants.” DOT, Appendix B – Explanation of Data,
People, and Things, 1991 WL 688701 (4th ed. 1991). As Ms. Duncan notes, the
three jobs at issue also have an “S-Significant” People rating.
We agree that the sedentary hypothetical question to the VE did not include
the limitation to “superficial contact with coworkers, supervisors, and the public.”
We conclude the omission does not require reversal, however, because any error was
harmless. As we noted in Hackett, the full DOT job descriptions for the jobs of
call-out operator and surveillance system monitor “indicate that contact with people
is rather limited.” Hackett, 395 F.3d at 1175. Accordingly, at least two of the three
jobs identified by the VE are consistent with the restriction of “superficial contact
with coworkers, supervisors, and the public.” See, e.g., id. at 1175-76 (concluding
that there was no conflict between DOT’s job descriptions for call-out operator and
surveillance-system monitor stating that jobs required significant contact and VE’s
testimony that jobs were suitable for claimant with restriction of avoiding direct
contact with the general public and only occasional interaction with coworkers). Any
error was therefore harmless. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004) (noting that improper reliance on two of three jobs identified by VE could have
been deemed harmless error “had the number of available jobs identified by the VE
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[in the one occupation consistent with the claimant’s RFC] not been one hundred but
considerably greater”).
E. Credibility
Finally, Ms. Duncan challenges the ALJ’s credibility determination. She
argues that the ALJ mischaracterized her activities of daily living, made non-specific
references to “other evidence” to support the credibility determination, and did not
properly evaluate two treating physicians’ opinions that she was disabled. Aplt.
Opening Br. at 39.
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial evidence.”
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks
omitted). Nevertheless, an ALJ’s credibility finding “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” Id. (internal quotation marks omitted).
When evaluating a claimant’s subjective statements regarding pain, an ALJ
should consider factors such 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 relationship between the claimant and
other witnesses, and the consistency or compatibility of
nonmedical testimony with objective medical evidence.
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Id. at 1145 (internal quotation marks omitted). But contrary to Ms. Duncan’s claims,
an ALJ is not required to address each factor in his decision. See Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000) (observing that credibility assessment does not
require “formalistic factor-by-factor recitation of the evidence” but instead requires
reference to specific evidence the ALJ does rely on).
The ALJ found that Ms. Duncan’s statements concerning the limiting effects
of her disabling pain were not entirely credible in light of discrepancies between her
alleged symptoms and objective medical evidence in the record. In reaching this
credibility determination, the ALJ discussed the medical evidence and Ms. Duncan’s
testimony. In terms of daily activities, the ALJ noted that Ms. Duncan can perform
household chores with the help of her husband, has a driver’s license and is able to
go shopping, and carries above her head but that she needs help with bathing,
cooking, and tying her shoes. The ALJ found that Ms. Duncan’s medical care had
been routine and conservative in nature; that treatment for her degenerative disc
disease of the cervical spine included medication management; and that there were no
side effects from the use of medications. The ALJ also noted the absence of any
pathological clinical signs or significant medical findings of severe, disabling pain.
He further discussed a comprehensive medical examination in 2010 that found that
Ms. Duncan had a full, active range of motion of her hands and observation during
examination showed that she could use her hands. The ALJ further stated that
Ms. Duncan’s description of limitations was generally inconsistent and, further, that
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her credibility was eroded by a history of numerous violations of the law and
subsequent incarcerations.
We conclude the ALJ considered the appropriate factors in assessing
Ms. Duncan’s credibility and adequately tied his credibility findings to substantial
evidence in the record.
III. Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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