Scull v. Apfel ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 26 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY R. SCULL,
Plaintiff-Appellant,
v. No. 99-7106
(D.C. No. 98-CV-467-B)
KENNETH S. APFEL, Commissioner (E.D. Okla.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and BRISCOE , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff Danny R. Scull appeals from a district court order affirming the
Commissioner’s decision to deny Supplemental Security Income benefits. We
review the Commissioner’s decision to determine whether it is supported by
substantial evidence and adheres to applicable legal standards. See Berna v.
Chater , 101 F.3d 631, 632 (10th Cir. 1996). “The scope of our review, however,
is limited to the issues the claimant properly preserves in the district court and
adequately presents on appeal.” Id. We reject the two arguments advanced by
plaintiff on appeal and, accordingly, affirm.
Plaintiff alleged disability due to a combination of physical impairments,
including pain in his back, knees, and right arm, and mental limitations, involving
depression and borderline intelligence. The administrative law judge determined
plaintiff had the residual functional capacity (RFC) for a full range of medium
work, albeit limited to simple, unskilled tasks. Based on a series of occupations
satisfying this description identified by a vocational expert, the ALJ concluded
plaintiff was not disabled at step five of the controlling test and denied benefits
accordingly.
Plaintiff challenges the ALJ’s decision on two grounds. First, he argues
that the RFC determination is undercut by the ALJ’s failure to order x-rays in
conjunction with a consultative medical examination obtained from Dr. Neil
Miller. Specifically, he contends x-rays were necessary to confirm Dr. Miller’s
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suggested diagnosis of arthritis. The particular focus of this objection undercuts
its materiality–disability determinations turn on the functional consequences,
not the causes, of a claimant’s condition, and “[t]he mere diagnosis of arthritis,
of course, says nothing about the severity of the condition,” Higgs v. Bowen ,
880 F.2d 860, 863 (6th Cir. 1988). We have on a number of occasions recognized
this dispositive gap between diagnostic evidence per se and the requisite showing
of consequent impairment. See, e.g. , Coleman v. Chater , 58 F.3d 577, 579
(10th Cir. 1995).
In any event, the ALJ did not deny benefits because of doubts about the
diagnosis of arthritis–indeed, the ALJ recognized “probable osteoarthritis” as an
impairment at step two, assessed that impairment against the listing criteria for
arthritis at step three, and determined plaintiff’s RFC for steps four and five by
reference to symptoms relating to the condition. Rather, the ALJ denied benefits
because the medical record, including Dr. Miller’s physical examination,
demonstrated that any associated functional limitations were insufficient to
preclude plaintiff from engaging in medium work. Under these circumstances,
we cannot say obtaining x-rays to confirm the diagnosis of arthritis would have
had “a material impact on the disability decision requiring further investigation.”
Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997) (establishing standard
for ALJ’s duty to develop record). Plaintiff’s reliance on Baker v. Bowen ,
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886 F.2d 289, 291-92 (10th Cir. 1989), which held that an ALJ should have
obtained x-rays before denying the existence of arthritis on the ground that there
were no x-rays to support such a diagnosis , is misplaced.
Second, plaintiff insists the ALJ’s assessment of his mental functioning is
inconsistent with the conclusions of agency physicians who prepared a Psychiatric
Review Technique (PRT) and a Mental Residual Functional Capacity Assessment
(MRFC) form after reviewing the medical records. The ALJ’s PRT differed in
only two minor respects from the reviewers’ PRT: where the ALJ found slight
limitations on daily activities and no episodes of deterioration or decompensation,
the reviewers found moderate limitations and one or two such episodes. This
court has discounted similarly minor undiscussed discrepancies when, as here, the
ALJ expressly indicated that all evidence had been considered. Moreover, the
ALJ’s consideration of the bare conclusions on the reviewers’ PRT was clearly
informed by the explanatory detail added by their accompanying MRFC, which
indicated that for simple tasks plaintiff’s mental functioning was not significantly
limited in any respect. 1
Again, plaintiff’s reliance on a nominally contrary decision, Tiger v. Apfel ,
No. 97-5134, 1998 WL 166246 (10th Cir. April 7, 1998) (unpublished), turns out,
1
This conclusion is also corroborated by the consultative examination report
prepared by Gerald Ball, Ph.D., who tested plaintiff’s cognitive capacity and
confirmed his ability to handle simple instructions.
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on closer review, to be misplaced. In Tiger , this court held that an ALJ erred in
denying disability at step two for lack of a severe mental impairment without
discussing a psychological reviewer’s conclusion that the claimant was severely
impaired in her ability to handle detailed instructions. In Tiger , unlike here, the
reviewer’s assessment on the PRT was not qualified by the MRFC, and both flatly
contradicted the ALJ’s dispositive conclusion about the claimant’s impairment.
See id. **1-**2.
Finally, plaintiff also points out that the reviewers’ MRFC in this case
noted a moderate limitation on plaintiff’s ability to interact appropriately with the
general public, a vocationally relevant fact omitted, without explanation, from the
hypothetical posed by the ALJ to the vocational expert. However, most if not all
of the six distinct jobs identified by the vocational expert clearly do not require
interaction with the general public, as reflected by their respective descriptions in
the Dictionary of Occupation Titles. Indeed, plaintiff has never suggested
otherwise. Under the circumstances, the ALJ’s silence on the matter of public
interaction was simply immaterial to the outcome in the case.
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The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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