Liessmann v. Barnhart , 49 F. App'x 883 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 4 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL LIESSMANN,
Plaintiff - Appellant,
v. No. 02-2070
(D.C. No. CIV-99-1474 JC/JHG)
JO ANNE B. BARNHART, (D. New Mexico)
Commissioner, Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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This order and judgment is not binding precedent, except under the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.
Shannon Rutledge’s surviving spouse appeals from an order of the district
court affirming an order by the Commissioner of the Social Security
Administration denying disability benefits to her. She sought those benefits under
Title II and Title XVI of the Social Security Act. On appeal, she argues that the
Commissioner failed to properly assess her mental impairment, by, among other
things, disregarding the opinions of her treating and consulting physicians and by
understating the extent to which her impairment barred her from employment.
Because we conclude that substantial evidence supports the Commissioner’s
decision, and because that decision was reached in accord with relevant legal
standards, we must affirm.
A. Background
Claimant Shannon Rutledge filed her application for benefits in May of
1995, two months after she was admitted to a hospital in the wake of an attempted
suicide. She alleged that she was disabled due to a severe and chronic depression,
a condition exacerbated by a series of physical impairments, including seizures,
an anxiety disorder, and pain in her back and left leg. Tragically, in May of 2002,
more than five years after the ALJ issued his ruling, Ms. Rutledge committed
suicide. Her surviving spouse, Michael Liessmann, has been substituted as a
party to this appeal.
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After a hearing at which Ms. Rutledge, her mother, and a vocational expert
testified, the administrative law judge (ALJ) found that Ms. Rutledge suffered
from the severe impairments of major depression, anxiety disorder, and a seizure
disorder. Adhering to the five step sequential process required to assess claims of
disability, see 20 C. F. R. §§ 404.1520; 416.920, he also found that this
combination of conditions and symptoms prevented her from returning to her past
work as an office manager. At step five in the sequential process, however, the
ALJ determined that Ms. Rutledge retained the residual functional capacity to
perform certain light duty work, including security/surveillance monitor, a
highway flagger on a road construction crew, or some limited clerical work, and
thus he found that she was not disabled for purposes of obtaining social security
benefits.
Ms. Rutledge’s medical history and course of treatment is well documented
by the parties, and need not be repeated here.
B. Legal Standards Governing Review
Our review is limited to two questions: 1) does substantial evidence support
the Commissioner’s decision?; and 2) does that decision comport with governing
legal standards? In reviewing the ALJ’s ruling, we may neither “reweigh the
evidence nor substitute our judgment for the [Commissioner’s].” Glass v.
Shalala , 43 F.3d 1392, 1395 (10th Cir. 1994). If supported by substantial
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evidence, the Commissioner’s findings must be affirmed. 42 U.S.C. § 405(g).
“Substantial evidence is more than a scintilla, less than a preponderance, and is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Sisco v. United States Dep’t of Health & Humans Servs. , 10 F.3d
739, 741 (10th Cir. 1993).
C. The ALJ’s Decision
The ALJ did not dispute that Ms. Rutledge suffered from a severe
depression, coupled with an anxiety disorder triggered by stress and interactions
with the public. But after a lengthy summary of the medical record, he
determined that she made significant progress after her initial hospitalization in
March of 1995 and her readmission one month later. Her treatment records,
according to the ALJ, showed a fairly steady, if not uninterrupted, trend toward
improvement, especially after Ms. Rutledge’s medications were properly adjusted.
By August of 1995, Dr. Fury, one of the treating physicians, reported that Ms.
Rutledge was “improving on her medications.” Aplt. App., Vol. III at 392. In
December of that year, the doctor noted that Ms. Rutledge was “doing quite well
and is getting A’s in school.” Id. at 389. (Ms. Rutledge was enrolled in a
vocational training program, where she was learning electronics.) She “look[ed]
better than I have seen her since she started coming here.” Id. Though she
suffered a two-week bout of depression in August 1996, Dr. Fury observed that
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she was nevertheless alert, oriented, and cooperative, and she recommended that
Ms. Rutledge continue with her medications and counseling.
The ALJ bolstered his account of Ms. Rutledge’s improved medical
condition by noting strengths in other aspects of her life. For instance, he
observed that she not only attended school daily, but she performed quite well
there. Commenting on her enrollment in a difficult electronics class, he found
that her performance at school contradicted her claim that she was precluded from
working because of diminished concentration and memory abilities. School
attendance, while not conclusive, “may be considered by the [Commissioner],
along with medical testimony, in determining the right of a claimant to disability
payments under the Social Security Act.” Gay v. Sullivan , 986 F.2d 1336, 1339
(10th Cir. 1993) (quotation omitted).
Similarly, the ALJ found that Ms. Rutledge’s daily activities demonstrated
her capacity to cope adequately with her mental impairments. She gardened,
baked, fished, played golf, drove a car, exercised frequently, and shopped.
Additionally, as the ALJ noted, Ms. Rutledge married in June of 1996, and for
much of the relevant time period she attended weekly sessions of a support group,
both of which reflected a degree of social isolation less marked than that urged by
Ms. Rutledge.
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At the same time, the ALJ discounted the extent to which Ms. Rutledge
claimed to suffer uncontrollable bouts of decompensation (crying jags or rage),
because none of her medical providers or counselors documented that these events
occurred regularly (though at least one did mention that she had problems with
emotional extremes) and because they did not occur in school. Likewise, as
indicated above, he questioned Ms. Rutledge’s assertion that her concentration
and memory were impaired, again noting a lack of any medical documentation of
these limitations.
Turning to Ms. Rutledge’s specific work capabilities, the ALJ concluded
that her medical impairments (those that he accepted as supported by the medical
record) did not preclude her from all employment. Recognizing that she could
only work in a low stress environment, one that did not require her to interact
with the public, he found she was able to perform the occupations of surveillance
monitor, highway flagger, and clerical work not involving public interaction. He
determined that all of these jobs exist in significant numbers in the regional and
national economy. His conclusion in this regard flowed from testimony at the
hearing given by a vocational expert. The expert confirmed that these jobs
satisfied the limitations on Ms. Rutledge’s residual functional capacity imposed
by the ALJ; that is, they are relatively free from stress and do not require much
interaction with people.
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The ALJ, however, rejected answers to certain questions by the vocational
expert given on cross-examination, answers that effectively eliminated the
occupations identified as suitable for Ms. Rutledge. Those questions, posed by
Ms. Rutledge’s lawyer, asked the expert to assume that Ms. Rutledge’s testimony
was true, testimony concerning what she reported were limitations on her
concentration abilities as well as pain in her back and left leg. The ALJ ruled that
her testimony on these points was not credible, because it was unsupported by the
medical record. He therefore refused to consider the expert’s testimony on
cross-examination.
D. Legal Analysis
We conclude that the ALJ properly held that the Commissioner met her
burden at step five in the sequential process. We believe that the medical record,
the evidence concerning Ms. Rutledge’s daily activities and her performance at
school, and the testimony of the vocational expert show that Ms. Rutledge could
perform one or more of the occupations cited by the ALJ in his ruling. In
addition, we conclude that the ALJ did not err in refusing to accept testimony
given by the vocational expert on cross-examination. Consequently, we believe
that the evidence marshaled by the ALJ, though certainly not overwhelming,
constitutes substantial evidence in support of his decision. Unable to substitute
our judgment for his, we cannot disturb that ruling.
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We acknowledge, as did the ALJ, that several of the physicians who
examined or evaluated Ms. Rutledge labeled her “disabled.” Yet not a single
physician stated that she was unable to work for a continuous twelve-month-
period after the onset of her impairment. Such an assertion is the critical element
of a disability claim. To establish eligibility to benefits, a claimant must show
she is unable to work because of a medically determined impairment that lasts
continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A) (defining
“disability”).
Our observation that no physician reported that Ms. Rutledge’s impairment
met the above condition does not conflict with the opinion of Dr. Hutchinson, one
of the Commissioner’s consulting psychiatrists. Granted, he said that “[a]t this
level of depression, it is difficult to see how [Ms. Rutledge] could be able to
participate in competitive employment.” Aplt. App., Vol. III at 374. But this
statement falls short of establishing, as it must to trigger an entitlement to
benefits, that Ms. Rutledge was unable to work for a continuous twelve-month
period.
We similarly find no fault with the ALJ’s stated reasons for discounting
various other opinions given by several of Ms. Rutledge’s treating and consulting
physicians. Dr. Funk, who saw Ms. Rutledge for only one hour, admitted that he
had no test data and thus could only base his opinion about Ms. Rutledge’s
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disability on her “self report.” Id. at 433. Likewise, with respect to the conflict
in the medical record concerning whether Ms. Rutledge suffered from multiple
sclerosis, we cannot say the ALJ erred in agreeing with the specialist,
Dr. Burnbaum, who reported “there isn’t anything on my examination today to
suggest Multiple Sclerosis.” Id. at 432. The governing regulations generally
require the ALJ to “give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is
not a specialist.” 20 C. F. R. §§ 404.1527(d)(5); 416.927(d)(5).
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED. Ms. Rutledge’s motion for remand is DENIED. The
motion to supplement the record with her death certificate is GRANTED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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