Standlee v. Barnhart , 125 F. App'x 938 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ELIZABETH STANDLEE,
Plaintiff-Appellant,
v. No. 04-2143
(D.C. No. CIV-03-190-DJS)
JO ANNE B. BARNHART, (D. N.M.)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , 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.
Elizabeth Standlee appeals from an order affirming the Commissioner’s
decision that she is not entitled to Social Security disability insurance and
*
This order and judgment is not binding precedent, except under the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.
supplemental security income benefits. We have jurisdiction under 42 U.S.C.
§ 405(g) and 28 U.S.C. § 1291, and we affirm.
Background
Mrs. Standlee suffered injuries to her neck, left shoulder, and right wrist in
a fall at work on November 1, 1999. In succeeding months, she was treated for
various problems with both arms by multiple medical providers, including Dr.
Laurel McGinty for her right hand and arm and Dr. Ronald Takemoto for her left
arm. She continued working for the state of New Mexico as a Court Clerk II, on
light duty with restrictions, through March 14, 2001, when Dr. McGinty took her
off work to help her treatment.
In June 2001, Mrs. Standlee underwent a residual functional capacity
(RFC) assessment by physical therapist Teresa Barton. Ms. Barton opined that
Mrs. Standlee would risk increasing her symptoms by performing Court Clerk II
duties, but that she could perform light work with restrictions on grasping,
pushing, pulling, reaching, and lifting. On July 10, Dr. McGinty agreed with Ms.
Barton’s assessment. On July 19, Mrs. Standlee filed her application for benefits,
alleging a disability onset date of March 14, 2001. The state terminated her
employment on August 21, 2001, because she was unable to perform her duties.
An administrative law judge (ALJ) found that Mrs. Standlee had severe
impairments, but that her impairments were not severe enough to meet or
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medically equal a listed impairment. He further found that she retained the RFC
to do light work, with restrictions on her use of her upper extremities. The ALJ
determined that she did not have the capability to return to her previous relevant
work, but that her RFC allowed her to perform other jobs available in the regional
and national economy, and he denied her application. The Appeals Council and
the district court affirmed the ALJ’s decision. Mrs. Standlee appeals.
Discussion
I.
“We review the Commissioner’s decision to determine whether it is
supported by substantial evidence and whether correct legal standards were
applied.” McNamar v. Apfel , 172 F.3d 764, 766 (10th Cir. 1999). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir.
2001) (quotation omitted). “In evaluating the appeal, we neither reweigh the
evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y of
Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). “We have
emphasized that credibility determinations are particularly the province of the
finder of fact, and should not be upset if supported by substantial evidence.”
White v. Barnhart , 287 F.3d 903, 909 (10th Cir. 2001) (quotation omitted).
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II.
Mrs. Standlee first argues that the ALJ erred in determining her RFC
because the ALJ did not consider Dr. McGinty’s opinion about restrictions on
Mrs. Standlee’s use of her right upper extremity.
We disagree. The ALJ’s opinion explicitly discusses, in detail, Dr.
McGinty’s treatment of Mrs. Standlee. Aplt. App. Vol. I at 18-19, 20. In
addition, the ALJ recognized the restrictions advised by Dr. McGinty in his
hypothetical questions. Id. at 62. The RFC established for Mrs. Standlee
encompasses restrictions on both upper extremities. Id. at 20-21.
Mrs. Standlee next argues that the hypothetical questions posed to the
Vocational Expert (VE) were flawed because they did not relate all of her
impairments with precision. She particularly contends that the questions (1) did
not relate with precision Dr. McGinty’s restrictions on her use of her right upper
extremity, and (2) did not include the impairments to her upper left extremity that
Dr. Takemoto identified.
These contentions also are rejected. Dr. McGinty imposed restrictions of
“no repetitive grasping, lifting, reaching, or forceful pushing and pulling” with
the right upper extremity. Id. at 160, 358. These limitations were related almost
verbatim in the ALJ’s hypothetical question. Id. at 62. With regard to
Dr. Takemoto’s restrictions, the ALJ instructed the VE to consider each
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hypothetical question in conjunction with the restrictions set forth in the
preceding hypothetical questions. Thus, rather than repeating the same
restrictions over and over, he simply added additional restrictions in each
question. Id. at 61. In his first hypothetical question, he included restrictions on
the right upper extremity. Id. at 62. In the second hypothetical question, he
included restrictions on the left upper extremity. Id. at 64. Consequently, the
ALJ’s hypothetical questions did address restrictions applicable to
Mrs. Standlee’s left upper extremity, as well as to her right upper extremity.
Finally, Mrs. Standlee argues that the ALJ erred in discounting her
credibility. She contends that the ALJ did not properly analyze her allegations of
pain under Luna v. Bowen , 834 F.2d 161, 163 (10th Cir. 1987), and that he
improperly failed to discuss her mother’s testimony and her husband’s statement
about her disabling pain. Under Luna , once a claimant has shown a “loose nexus”
between her pain and a potentially pain-producing impairment, the ALJ must
consider all relevant evidence in evaluating claimant’s allegations of disabling
pain. Id. at 164-65; see also Soc. Sec. Rul. 96-7P, 1996 WL 374186, at *4
(“When evaluating the credibility of an individual’s statements, the adjudicator
must consider the entire case record and give specific reasons for the weight
given to the individual’s statements.”). “[F]indings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion
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in the guise of findings.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995)
(quotation omitted).
The ALJ’s decision reflects adequate consideration of the evidence. The
ALJ stated that he considered all of the exhibits and all of the testimony at the
hearing. Aplt. App. Vol. I at 17. “[O]ur general practice . . . is to take a lower
tribunal at its word when it declares that it has considered a matter.” Hackett v.
Barnhart , No. 04-1047, slip op. at 7-8 (10th Cir. Jan. 24, 2005). More
importantly, the ALJ thoroughly discussed the opinions of Mrs. Standlee’s
primary treating physicians and other aspects of the medical record, Aplt. App.
Vol. I at 18-20, and he made specific findings, supported by the record, regarding
Mrs. Standlee’s credibility and why he believed that her pain was not as severe as
alleged. Id. at 20-21.
While the ALJ did not specifically discuss the testimony of Mrs. Standlee’s
mother, we do not believe this omission is grounds for remand given the nature of
her mother’s testimony, which appears largely cumulative of Mrs. Standlee’s own
testimony. See Adams v. Chater , 93 F.3d 712, 715 (10th Cir. 1996) (“We decline
claimant’s invitation to adopt a rule requiring an ALJ to make specific written
finding of each witness’s credibility . . . .”); Clifton v. Chater , 79 F.3d 1007,
1009-10 (10th Cir. 1996) (“The record must demonstrate that the ALJ considered
all of the evidence, but an ALJ is not required to discuss every piece of
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evidence.”). With regard to Mrs. Standlee’s complaints about the ALJ’s failure to
consider her husband’s statement, we note that Mr. Standlee’s statement was
made a part of the record by the Appeals Council on January 10, 2003, well after
the ALJ’s decision. Aplt. App. Vol. I at 8. The ALJ cannot be faulted for not
discussing evidence that was not before him when he issued his decision. The
Appeals Council explicitly mentioned Mr. Standlee’s statement in its decision, but
found it unpersuasive. Id. at 6. We shall not reweigh the evidence or substitute
our judgment for that of the Commissioner. Hackett , slip op. at 9; Casias ,
933 F.2d at 800.
We conclude the Commissioner's decision is adequately supported by
substantial evidence in light of the entire record. The judgment of the district
court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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