Shirley v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 21 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PAUL E. SHIRLEY,
Plaintiff-Appellant,
v. No. 97-5046
(D.C. No. 95-CV-1206)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, *** District
Judge.
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel, the newly-appointed
Commissioner of Social Security, is substituted for Shirley S. Chater, former
Commissioner of Social Security, as the defendant 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This order and judgment is not binding precedent, except under the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 J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, 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. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff filed a claim for social security disability benefits on May 13,
1993, alleging that he became disabled on March 7, 1991, due to coronary artery
disease, degenerative arthritis of the spine, severe anxiety attacks, chest pain,
fatigue, shortness of breath, and depression. After a hearing, an administrative
law judge (ALJ) denied benefits at step five of the five-part evaluation sequence.
See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The ALJ decided
that plaintiff could not return to his past very heavy work as a machinist or
gunsmith, or to his past medium work as a welder. The ALJ found that plaintiff
nevertheless retained the residual functional capacity (RFC) to perform a wide
range of light work and was not disabled. The Appeals Council denied review,
making the ALJ’s decision the final agency decision. Plaintiff challenged this
decision by filing suit in federal district court. A magistrate judge 1 determined
that benefits were correctly denied. Plaintiff appeals. We have jurisdiction under
42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.
1
The parties consented to final disposition by the magistrate judge. See
28 U.S.C. § 636(c)(1).
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On appeal, plaintiff argues that: (1) the ALJ failed to give proper weight to
his treating physician’s opinion that the combination of his impairments would
make it difficult for him to work; (2) the ALJ failed to consider his physical and
mental impairments in combination; (3) the ALJ posed an improper hypothetical
to the vocational expert; and (4) the findings on the Psychiatric Review
Technique form are not supported by substantial evidence.
We review the agency’s decision on the whole record to determine only
whether it is supported by substantial evidence and whether the correct legal
standards were applied. See Goatcher v. United States Dep’t of Health & Human
Servs. 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or
substitute our judgment for that of the agency. See Kelley v. Chater, 62 F.3d 335,
337 (10th Cir. 1995).
We are not persuaded by plaintiff’s claims of error. He argues, first, that
the ALJ should have given a reason to reject the October 21, 1994 letter from
Dr. Hill, his psychiatrist, stating that the combination of his impairments would
make it difficult for him to pursue work, see II Appellant’s App. at 601.
Although the ALJ did not comment on that opinion, we observe that it is
unsupported by reference to any medical evidence. It is also inconsistent with
Dr. Hill’s own progress notes stating that plaintiff was doing “very well” or
“excellent” on medication, and Dr. Hill’s September 23, 1994 letter noting
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plaintiff’s multiple impairments and stating that plaintiff was doing “well” on
medication. Id. at 438-39, 602. Because Dr. Hill’s October 21, 1994 opinion
is “brief, conclusory and unsupported by medical evidence,” it was properly
disregarded. Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988).
Next, plaintiff argues that the ALJ failed to consider his physical and
mental impairments in combination. Our review of the ALJ’s decision convinces
us otherwise: the ALJ first considered the impact of plaintiff’s exertional
impairments on his RFC, and then the impact of his mental problems. See
II Appellant’s App. at 25-26. That the ALJ addressed the problems one at a time
does not mean that the ALJ failed to consider them in combination. We find no
error.
Plaintiff also argues that the ALJ posed an improper hypothetical to the
vocational expert. It is true that “‘testimony elicited by hypothetical questions
that do not relate with precision all of a claimant’s impairments cannot constitute
substantial evidence to support the [agency’s] decision.’” Hargis v. Sullivan,
945 F.2d 1482, 1492 (10th Cir. 1991) (quoting Ekeland v. Bowen, 899 F.2d 719,
724 (8th Cir.1990)). It is immaterial whether the ALJ’s hypothetical questions
were complete, however, because the vocational expert testified that there were
jobs that plaintiff could perform, even if plaintiff’s testimony was accepted as
fully credible. See II Appellant’s App. at 88.
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Finally, plaintiff contends that the ALJ’s finding on the Psychiatric Review
Technique (PRT) form that he never suffered episodes of deterioration or
decompensation in work or work-like settings, see id. at 35, is not supported by
substantial evidence. Plaintiff testified to one episode of deterioration in a
work-like setting, when he dropped out of junior college in the fall of 1994 due
to pressure and anxiety. See id. at 54.
Although the ALJ thus made a technical error on the PRT form, we see no
reason to remand for additional proceedings. Plaintiff testified that he needed an
adjustment of medication at the time he dropped out of school, see id., and the
implication of his testimony in light of his psychiatrist’s notes is that the problem
was resolved. Furthermore, under the regulation, if the findings on the PRT form
show a severe mental impairment, then the ALJ should evaluate whether the
claimant’s mental impairment meets a listed mental disorder. See 20 C.F.R.
§ 404.1520a(c)(2). In this case, however, plaintiff does not argue that his mental
impairment meets one of the listings. The ALJ’s mistake might have rendered his
hypothetical questions to the vocational expert incomplete. As noted above,
however, the vocational expert heard plaintiff’s testimony, was told to accept it as
fully credible, and nevertheless testified that there were jobs that plaintiff could
perform. Cf. Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777
(10th Cir. 1990) (holding that effect of ALJ’s error in identifying claimant’s
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subjective complaints was minimal where vocational expert was present and heard
claimant’s testimony, and revised her opinion after hearing it).
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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