Patterson v. Colvin , 662 F. App'x 634 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KENNETH L. PATTERSON,
Plaintiff - Appellant,
v. No. 16-3029
(D.C. No. 6:14-CV-01312-JWL)
CAROLYN W. COLVIN, Acting (D. Kan.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
_________________________________
Kenneth Patterson seeks reversal of the district court’s judgment upholding the
decision of an administrative law judge (ALJ) to deny his application for social
security disability insurance benefits and supplemental security income 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 This order and judgment is not binding precedent,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
Mr. Patterson, who was born in 1964, filed for disability benefits claiming he
became disabled on November 11, 2010, due to various physical and mental
impairments. On January 11, 2013, the ALJ issued an unfavorable decision
concluding that, although Mr. Patterson could not perform his past relevant work, he
had the residual functional capacity (RFC) to perform other work that existed in
substantial numbers in the national economy.1 Accordingly, the ALJ denied benefits
at step five of the 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). The Appeals Council received additional medical and
psychological evidence and denied review. The district court affirmed.
II. DISCUSSION
“Under the Social Security Act, a claimant is disabled if [he] 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, 1140 (10th Cir. 2010) (ellipsis
and internal quotation marks omitted). “We review the district court’s decision
de novo and independently determine whether the ALJ’s decision is free from legal
1
“The RFC assessment is a function-by-function assessment based upon all of
the relevant evidence of an individual’s ability to do work-related activities.” SSR
96-8p, 1996 WL 374184, at *3 (July 2, 1996). It “considers only functional
limitations and restrictions that result from an individual’s medically determinable
impairment or combination of impairments, including the impact of any related
symptoms.” Id. at *1.
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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).
A. Listing 1.04(A)
Mr. Patterson argues that his back problems met or medically equaled the
severity of Listing 1.04 for disorders of the spine. “At step three, if a claimant can
show that the impairment is equivalent to a listed impairment, he is presumed to be
disabled and entitled to benefits.” Wilson, 602 F.3d at 1139 (internal quotation marks
omitted). Mr. Patterson contends the ALJ failed to explain why his back condition
did not meet this listing and failed to recognize the medical evidence supporting his
claim.
Listing 1.04 applies to
[d]isorders of the spine (e.g., herniated nucleus polposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With
A. Evidence 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
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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, § 1.04 (emphasis omitted).
In determining Mr. Patterson did not have an impairment that met or equaled
the severity of listing 1.04, the ALJ observed that he did not have “nerve root
compression (though the evidence on this is somewhat equivocal), spinal
arachnoiditis or lumbar spinal stenosis,” as the listing requires. Aplt. App. Vol. 1, at
11. The ALJ further observed that in September 2010 Mr. Patterson had reported
pain for the previous six months, but no “numbness, weakness, bladder or bowel or
sexual dysfunction.” Id. at 15. The ALJ noted a cervical-spine MRI showing “some
degeneration,” but “no significant compressive radiculopathy.” Id. The ALJ cited an
October 2010 lumbar-spine MRI that “showed some degenerative changes in the
thoracic and lumbar spine without evidence of significant herniation or spinal
stenosis.” Id. at 15. The ALJ also cited a March 2012 CT study that “reflected mild
degenerative disease at L3-L4 and L4-L5 with no disc protrusion at any level, [with]
angular bulging at L4-L5 . . . result[ing] in mild central spinal stenosis with no
neuroforaminal stenosis.” Id.2
Mr. Patterson relies on medical records ranging from October 2010 through
March 2013 to argue that his condition met the requirements of Listing 1.04(A).
2
The ALJ included these findings in his analysis at step four. Mr. Patterson
acknowledges that this procedure was not erroneous. See Fischer-Ross, 431 F.3d at
733 (holding ALJ’s findings made at steps four and five that confirmed the step-three
rejection of the listings was not reversible error).
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Aplt. Opening Br. at 16-18. The medical reports do not document one of the
elements of Listing 1.04(A) – nerve root compression. And even if the conditions he
claims are equivalent to nerve root compression qualify under the listing, see id. at
17, the evidence does not establish that all of the medical conditions were present at
the same time for at least twelve months, as required to qualify. See 20 C.F.R.
§§ 404.1525(c)(3) (to satisfy listing criteria, impairment must “satisf[y] all of the
criteria of that listing” and “meet[] the duration requirement”); 404.1509 (durational
requirement means the impairment “is expected to result in death, [or] it must have
lasted or must be expected to last for a continuous period of at least 12 months”).
Mr. Patterson also asserts that the October 2010 lumbar-spine MRI, on which
the ALJ relied, correctly reflected his condition, while the March 2012 CT study, on
which the ALJ also relied, was incorrect. He points to a March 8, 2013, report of a
CT myelogram showing “severe neural foraminal narrowing” and “a disc bulge on
the left at L4-L5,” Aplt. App. Vol. 4, at 646, which he contends demonstrates that the
March 2012 study was inaccurate. But a CT scan performed January 21, 2013,
revealed equivocal findings, including “no cord compression,” “narrowing of the left
C4-5 neural foramen,” “mild narrowing of the left C5-6 in the left C6-7 neural
foramina,” “no evidence of significant central spinal stenosis,” and “[n]o other
potential focal disc protrusions.” Id. at 649. Thus, the 2013 reports do not rebut the
ALJ’s finding that there was “[no] nerve root compression (though the evidence on
this is somewhat equivocal),” id. Vol. 1, at 11.
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Mr. Patterson further argues that pain can substitute for a medical finding
required by a listing. He relies on 20 C.F.R. § 404.1526, which explains how an
impairment can be medically equivalent to a listed impairment. A claimant’s
symptoms, including pain, are evaluated pursuant to 20 C.F.R. 404.1529(d)(3). See
§ 404.1526(b)(4) (referring to § 404.1529(d)(3)). Section 404.1529(d)(3) specifies
that the agency “will not substitute [a claimant’s] allegations of pain . . . for a
missing or deficient sign or laboratory finding to raise the severity of [the claimant’s]
impairment(s) to that of a listed impairment.” Thus, Mr. Patterson’s pain complaints
cannot substitute for medical findings to satisfy medical equivalence.
Mr. Patterson maintains that the ALJ improperly evaluated the medical
evidence because he did not consider all of the evidence or discuss the evidence he
chose not to rely on. But the ALJ was not required to discuss every piece of
evidence. Hendron v. Colvin, 767 F.3d 951, 955 (10th Cir. 2014). Furthermore, the
ALJ stated that he had considered all of the evidence and we take him at his word.
See Flaherty, 515 F.3d at 1071 (We “take a lower tribunal at its word when it
declares that it has considered a matter” (internal quotation marks omitted)).
Substantial evidence supports the ALJ’s conclusion that Mr. Patterson did not meet
his burden to establish that he satisfied Listing 1.04(A). His failure to satisfy all of
the listing’s criteria means that he cannot prevail at step three as a matter of law. See
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
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B. Residual Functional Capacity
Mr. Patterson challenges the ALJ’s determination of his RFC at Step 4. The
ALJ determined that Mr. Patterson retained the RFC to perform less than a full range
of light work. The ALJ specified restrictions on his physical abilities, including
lifting, carrying, standing, walking, sitting, and reaching. The ALJ determined that
Mr. Patterson could “perform simple, unskilled work involving routine, repetitive
tasks.” Aplt. App. Vol. 1, at 13. Mr. Patterson asserts that these restrictions fail to
properly account for his back condition as discussed above, as well as his mental
impairments. He argues the ALJ erred in his assessment of the state agency
physicians’ opinions, Mr. Patterson’s activities, his inconsistent statements in the
record, the report from his employer, and other credibility factors.
As discussed above, Mr. Patterson contends his back impairment was disabling
at step three. He does not further argue that the restrictions the ALJ found at step
four were inappropriate.
Mr. Patterson next claims the ALJ failed to take into account his limitations in
social functioning and concentration, persistence, and pace. He bases this argument
on the ALJ’s step-three finding that these limitations were moderate. But this finding
was not an RFC assessment; rather it was “used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process.” SSR 96-8p,
1996 WL 374184, at *4 (July 2, 1996). The ALJ’s finding of moderate limitations at
step three “does not necessarily translate to a work-related functional limitation for
7
the purposes of the RFC assessment.” Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir.
2015).
In determining Mr. Patterson’s mental RFC, the ALJ considered the opinion of
Michael Klemens, Ph.D., L.P., who performed a consultative psychological
evaluation. According to Dr. Klemens, Mr. Patterson’s social functioning did not
appear to be limited, he had no difficulty in understanding instructions or recalling
information, he had average attention and concentration, and his social functioning
did “not appear to be limited.” Aplt. App. Vol. 3, at 425. The state agency medical
consultants, Drs. Wilkinson, Cohen, and Timmerman opined that Mr. Patterson was
capable of simple, routine, light work. The ALJ gave substantial weight to those
assessments.
Mr. Patterson claims the March 2013 narrative report by his treating
psychologist, John Makings, M.S., L.M.L.P, demonstrated that his mental
impairments were more severe than the ALJ found. Mr. Makings’ report and some
treatment notes from the Center for Counseling and Consultation were submitted to,
and reviewed by, the Appeals Council after the ALJ issued his decision.
Mr. Makings assessed Mr. Patterson as “Markedly Limited” in all areas of
functioning, the most severe category available on the form. See Aplt. App. Vol. 4,
at 662-63. Mr. Makings’ treatment notes describe psychological problems caused by
Mr. Patterson’s arrest on criminal charges. See id. at 512, 499, 497. But his
narrative report does not refer to this situational stressor, nor does it indicate that
Mr. Patterson’s psychological limitations had lasted or could be expected to last at
8
least twelve months. See Wilson, 602 F.3d at 1140 (stating disability requires a
mental impairment to last for “a continuous period of not less than 12 months”).
Moreover, Mr. Makings’ assessment is inconsistent with the other psychological
evidence in the record. Therefore, there is no reasonable possibility that the evidence
would have changed the outcome if the ALJ had considered it.
Having noted above that the ALJ was not bound by his step-three assessment
of moderate limitations, we find no reversible error in the ALJ’s reliance on the
psychological opinions indicating lesser limitations. The evidence in the record
regarding Mr. Patterson’s mental status supports the ALJ’s RFC determination that
limiting him to “simple, unskilled work involving routine, repetitive tasks,” Aplt.
App. Vol. 1, at 13, would adequately account for his limitations in social functioning,
and in concentration, persistence, and pace. Cf. Vigil, 805 F.3d at 1204 (holding that
the ALJ properly accounted for the claimant’s moderate limitations in concentration,
persistence, and pace in the RFC assessment by limiting him to unskilled work).
Mr. Patterson also complains that the ALJ did not perform the function-by-
function evaluation contemplated by SSR 96-8p, 1996 WL 374184, at *3. But an
explicit function-by-function evaluation was not required because the ALJ considered
the work restrictions necessary to accommodate Mr. Patterson’s mental limitations.
Cf. Hendron, 767 F.3d at 956-57 (holding ALJ’s failure to perform explicit function-
by-function analysis was not error where ALJ did not overlook limitations or
restrictions pertinent to the work the claimant could do).
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Next, Mr. Patterson complains that the state agency medical consultants’
opinions were issued before much of the medical evidence concerning his spine
disorders was generated. But he cites no rule preventing the ALJ from giving
substantial weight to the state agency expert’s opinions. Rather, he seeks to have this
court reweigh the evidence to his benefit, which we do not do, see Flaherty, 515 F.3d
at 1070.
Mr. Patterson also challenges the ALJ’s credibility determination. He asserts
that the ALJ improperly found him less than fully credible by (1) relying on the fact
that he had not participated in physical therapy or undergone back surgery;
(2) incorrectly describing his daily activities and finding that some of his statements
were inconsistent; (3) suggesting that he worked 24 hours a week, when in fact he
worked only ten hours a week at most; and (4) not discussing in full the report from
his employer. “Credibility determinations are peculiarly the province of the finder of
fact, and we will not upset such determinations when supported by 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).
Mr. Patterson concedes that his treating physician recommended physical
therapy but “ultimately . . . acquiesced to [Mr. Patterson’s] wishes” for epidural
steroid injections instead. Aplt. App. Vol. 4, at 598. It was not improper for the ALJ
to consider this circumstance in assessing Mr. Patterson’s credibility. See Decker v.
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Chater, 86 F.3d 953, 955 (10th Cir. 1996) (stating ALJ legitimately factored into
credibility determination the claimant’s failure to follow prescribed treatment). And
although Mr. Patterson had back surgery, the surgery did not take place until June 20,
2013, well after the ALJ’s decision, and the surgical report did not specify that the
findings applied to the pre-ALJ-decision period. See Chambers v. Barnhart,
389 F.3d 1139, 1142 (10th Cir. 2004) (holding agency must consider evidence
submitted after the ALJ’s decision if, among other things, the evidence related to the
period on or before the date of the ALJ’s decision). Thus, we perceive no reversible
error in the ALJ’s consideration of this credibility factor.
As for the description of his daily activities and his explanations of why his
statements were not inconsistent, Mr. Patterson asks this court to reweigh the
evidence in his favor. Again, we do not do so. See Flaherty, 515 F.3d at 1070.
Next, Mr. Patterson contends the ALJ misperceived his work situation. On the
contrary, the ALJ clearly recognized that Mr. Patterson was working ten hours a
week as a cook at the Sonic restaurant at the time of the administrative proceedings,
although in the past he had worked longer hours. See Aplt. App. Vol. 1, at 18. In
addition, the ALJ acknowledged Mr. Patterson’s testimony that he “might miss a
couple days [of work] a week, which, supposedly, was fine with his employer,” and
recognized that the employer’s report “noted some difficulty with function.” Id.
Mr. Patterson asserts that the ALJ was required to discuss all of the remarks in the
employer’s report, such as difficulty maintaining adequate pace and adapting to work
changes. These limitations were adequately addressed by the psychological
11
evidence. Moreover, the ALJ did not, as Mr. Patterson argues, conclude that
Mr. Patterson could perform full-time work based only on his part-time work at
Sonic. Rather, the ALJ’s discussion of the evidence and his reasons for his
conclusions demonstrate that he considered all the evidence in formulating the RFC.
Mr. Patterson contends the ALJ improperly noted that no physician had stated
he was disabled. In the context of the ALJ’s overall analysis, this was not error. Cf.
Wall, 561 F.3d at 1068-69 (holding that a less extensive analysis is required where no
medical evidence conflicted with the ALJ’s conclusion that the claimant could
perform light work and no physician indicated that the claimant was disabled).
Therefore, we conclude that the ALJ’s credibility findings are supported by
substantial evidence in the record as a whole.
C. Evidence Submitted to the Appeals Council
Finally, Mr. Patterson argues the evidence he submitted to the Appeals
Council after the ALJ issued his decision on January 11, 2013, was relevant to his
claims. The Appeals Council received and considered the records and report
submitted by the treating psychologist, Mr. Makings, as well as medical records
pertaining to Mr. Patterson’s back impairment dated November 19, 2012, through
March 8, 2013, as discussed above. The Appeals Council did not receive or consider
additional medical records dated April 8, 2013, through August 27, 2013.
Mr. Patterson argues the additional medical records should have been considered
because they showed what his condition had been all along.
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“[T]he Appeals Council must consider evidence submitted with a request for
review if the additional evidence is (a) new, (b) material, and (c) related to the period
on or before the date of the ALJ’s decision.” Chambers, 389 F.3d at 1142 (brackets
and internal quotation marks omitted). If the additional evidence does not meet these
criteria, “it plays no further role in judicial review of the Commissioner’s decision.”
Id. Although the additional medical records related to his ongoing back condition,
they did not establish the severity of the condition on or before January 11, 2013, the
date of the ALJ’s decision. Accordingly, the Appeals Council properly declined to
consider these records.
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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