Jones v. Colvin , 647 F. App'x 878 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 20, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
HERBERT GERARD JONES,
Plaintiff - Appellant,
v. No. 15-3193
(D.C. No. 6:14-CV-01311-JWL)
CAROLYN W. COLVIN, Acting (D. Kan.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Herbert Gerard Jones appeals from the district court’s order affirming the
Commissioner’s decision denying his application for Social Security disability
benefits. Mr. Jones applied for these benefits with a protected filing date of
July 12, 2011 and a date last insured of December 31, 2011. He alleged that he
became disabled on June 9, 2010 due to his need for a pacemaker, sleep apnea, and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
swelling in his legs. The agency denied his application initially and on
reconsideration.
On November 30, 2012, Mr. Jones received a de novo hearing before an
administrative law judge (ALJ). The ALJ determined that he had the severe
impairments of obesity, peripheral artery disease, and cardiac dysrhythmias but that
his impairments, considered singly or in combination, did not meet or medically
equal a listed impairment. The ALJ assessed his residual functional capacity (RFC)
as follows:
[T]hrough the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) in that he
can lift 20 pounds occasionally and 10 pounds frequently; can stand and/or
walk about 6 hours out of an 8 hour workday, with normal breaks; can sit
for about 6 hours out of an 8 hour workday, with normal breaks; and push
and/or pull the same weights; except the claimant must alternate between
sitting, standing, and walking every 20 minutes; cannot use foot controls;
and cannot reach overhead with the left arm.
R. at 36 (boldface omitted).
The ALJ found that Mr. Jones could return to his past relevant work as a
program worker and was therefore not under a disability. The Appeals Council
denied review, making the ALJ’s decision the Commissioner’s final decision.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
2
The Commissioner follows a five-step sequential evaluation process to
determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988) (describing process). The claimant bears the burden of
establishing a prima facie case of disability at steps one through four. See id. at 751
n.2. This case was decided at step four, and the burden of proving that he could not
perform his past relevant work therefore remained with Mr. Jones.
Because he is proceeding pro se in this appeal we liberally construe
Mr. Jones’s filings but do not serve as his advocate. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). We consider only those arguments adequately
presented for our review, Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.
2004), and do not consider issues raised for the first time in a reply brief, Cordova v.
City of Albuquerque, 816 F.3d 645, 650 n.1 (10th Cir. 2016).
1. RFC Assessment
Mr. Jones argues that the ALJ failed to link her RFC assessment to the medical
evidence and failed to show how the evidence supported her findings. An “ALJ is
charged with carefully considering all the relevant evidence and linking [her]
findings to specific evidence.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000).
Her “RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts . . . and nonmedical
evidence.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
The ALJ’s narrative discussion of her RFC assessment appears on pages five
through eight of her decision. See R. at 36-39. In this narrative, the ALJ thoroughly
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discussed the medical evidence, Mr. Jones’s testimony, and the medical and
non-medical opinions. She explained how specific record evidence supported
individual elements of her RFC assessment. The ALJ also gave reasons for rejecting
both lesser and greater limitations on specific functions than those she adopted as
part of the assessment. She sufficiently articulated the reasons supporting her
decision and adequately tied the findings in her RFC assessment to the record
evidence. Mr. Jones’s argument on this point therefore lacks merit.
2. Evaluation of Christie Yourdon’s Medical Opinion
The ALJ gave “only some weight” to the medical opinion of Christie Yourdon,
PAC, a physician’s assistant who treated Mr. Jones. Id. at 38. Mr. Jones argues the
ALJ should have (1) accepted Ms. Yourdon’s conclusion that he needed to frequently
elevate his legs during the workday; (2) considered and addressed the required
factors for assessing a physician’s assistant’s opinion; and (3) re-contacted
Ms. Yourdon for clarification of her opinion.
The ALJ rejected Ms. Yourdon’s requirement that Mr. Jones must frequently
elevate his legs during the workday. She noted that Mr. Jones’s edema was generally
described as mild or minimal in the medical record, had improved with treatment,
and appeared to be well-controlled with medication and the use of medical stockings.
See id. at 37-38. She thus adequately explained her rejection of the purported
limitation. Our record review reveals that the reasons she gave were supported by
substantial evidence.
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As a physician’s assistant, Ms. Yourdon was not an “acceptable medical
source” under the Social Security regulations. See 20 C.F.R. § 404.1513(d)(1)
(identifying physician’s assistants as “other sources” rather than “acceptable medical
sources”). Although the ALJ should evaluate opinions from medical sources who are
not acceptable medical sources by using the applicable factors for weighing opinion
evidence, see SSR 06-03p, 2006 WL 2329939, at *4 (Aug. 9, 2006), not every factor
will apply in each case, id. at 5, and “the ALJ’s decision is sufficient if it permits us
to follow the adjudicator’s reasoning,” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164
(10th Cir. 2012) (internal quotation marks omitted). The ALJ essentially accepted
Ms. Yourdon’s limitations on lifting, sitting, and standing, finding them “generally
consistent or less restrictive than the limitations” in her RFC assessment. R. at 38.
But she rejected Ms. Yourdon’s requirement that Mr. Jones must frequently elevate
his legs. As we have explained, the ALJ gave adequate reasons for rejecting that
limitation, based on substantial evidence in the record. Thus, the ALJ adequately
addressed Ms. Yourdon’s opinion.
Nor was the ALJ required to re-contact Ms. Yourdon for clarification of her
opinion. Under the regulations in effect at the time of the ALJ’s decision,1 if the ALJ
determined that the evidence was inconsistent or insufficient to permit her to
determine whether Mr. Jones was disabled, she could have taken several different
actions to enhance the record, including re-contacting his medical sources. See
1
Mr. Jones cites an outdated regulation, which provided the agency with less
discretion than the currently applicable regulation to resolve conflicts, ambiguities, or
deficiencies in the record. See Aplt. Opening Br. at 4.
5
20 C.F.R. § 404.1520b(c) (2012). But Mr. Jones fails to show that inconsistent or
insufficient evidence prevented the ALJ from determining whether he was disabled.
The ALJ therefore did not err by failing to re-contact Ms. Yourdon.
3. Step-Four Determination
Mr. Jones next argues that the ALJ failed to make proper findings of fact at
step four of the analysis concerning his ability to return to his past relevant work. He
contends that the ALJ merely adopted the analysis of these issues provided by the
vocational expert (VE), without making her own required findings.
“Step four of the sequential analysis . . . is comprised of three phases.”
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). “In the first phase, the ALJ
must evaluate a claimant’s physical and mental . . . RFC . . . and in the second phase,
[she] must determine the physical and mental demands of the claimant’s past relevant
work.” Id. “In the final phase, the ALJ determines whether the claimant has the
ability to meet the job demands found in phase two despite the . . . limitations found
in phase one.” Id. “At each of these phases, the ALJ must make specific findings.”
Id.Mr. Jones contends that the ALJ failed to make proper findings at phases two
and three of the analysis. Concerning these phases, the ALJ stated:
In comparing [Mr. Jones’s RFC] with the physical and mental demands of
[his past relevant] work, the undersigned finds that [he] was able to perform
it as actually and generally performed. The [VE] indicated [he] could
perform this job under the [RFC] found in this case. This corresponds with
the Dictionary of Occupational Titles [(DOT)], which indicates this job is
performed at the light exertional level, with no overhead reaching [or] use
of foot controls. Although the [DOT] does not provide specific information
6
on alternation of positions, nothing in the [DOT] contradicts the [VE’s]
testimony on this issue. Furthermore, the requirements of this job, both as
indicated in the [DOT] and as described in [Mr. Jones’s] testimony, appear
compatible with said limitation on alternation. Therefore, the undersigned
finds the [VE’s] testimony on this issue credible.
Based on this information, the undersigned finds [Mr. Jones] can return to
past relevant work under this [RFC].
R. at 40.
The ALJ made adequate findings at phase two, concluding that Mr. Jones’s
past relevant work required the ability to work at the light exertional level, with no
overhead reaching or use of foot controls, and with the ability to alternate positions.
These phase-two findings tracked the specifics of the ALJ’s RFC assessment, which
included the limitations relevant to phase one of the step-four analysis. See id. at 36.
Because the ALJ’s analysis and conclusion addressed Mr. Jones’s ability to satisfy
the job demands found in phase two, given his phase-one limitations, it also satisfied
her responsibility at phase three. In addition, the ALJ did not merely delegate her
analytical duties to the VE but permissibly “quoted the VE’s testimony approvingly,
in support of [her] own findings at phases two and three of the analysis.” Doyal v.
Barnhart, 331 F.3d 758, 761 (10th Cir. 2003). In sum, Mr. Jones fails to show that
the ALJ erred in her step-four analysis.
4. Credibility Determination
Mr. Jones argues that the ALJ improperly assessed his credibility. His only
specific complaint about her credibility analysis appears to be that she disregarded
his testimony concerning the limitations imposed by his use of a pacemaker and his
sleep apnea. In her decision, the ALJ listed the regulatory factors used to assess
7
credibility, then stated that Mr. Jones “generally reports symptoms, such as swelling,
in excess of those described in [his] treatment records. He also reports problems,
such as falling asleep when sitting for too long, which he does not report to his
providers.” R. at 37. Based on these discrepancies and the medical record, the ALJ
found Mr. Jones’s allegations “only partially credible.” Id. The ALJ then thoroughly
analyzed the medical record, comparing Mr. Jones’s subjective complaints to his
statements to his treatment providers and the objective medical evidence. Id. at
37-38.
The ALJ addressed Mr. Jones’s sleep apnea complaint as follows:
[Mr. Jones] has been diagnosed with sleep apnea. [He] alleges he cannot
stay awake. However, he was started on a CPAP machine in July 2010,
around the time of his alleged onset date. He reported feeling much better
after beginning treatment, has no complaints of snoring or nasal patency,
falls asleep more easily and does not awaken during the night for any
reason. He indicated he felt rested in the morning without headaches or
congestion, and his provider felt [he] was adequately treated.
R. at 34 (citations omitted).
Mr. Jones does not identify any error in this analysis of his sleep apnea
complaint. Nor does he point to any specific statements he made concerning his
pacemaker that the ALJ ignored. Instead, he refers us to a medical record from 1997
that was not before the ALJ or presented to the Appeals Council, but was attached to
his district-court brief.
In this record, dated December 11, 1997, Dr. Alvin Wolfe considered
Mr. Jones’s request for a “release to work” after implantation of his pacemaker. Id.
at 550. He described Mr. Jones as “feeling good,” with “no sym[ptoms] now,” which
8
made him “happy.” Id. But he noted that a different doctor “called & he indicated
that [Mr. Jones] can work at no [heights], restricted stooping and bending, lifting &
working overhead.” Id. The record concluded that Mr. Jones was “[r]eleased to
work.” Id.
The ALJ could not have “ignored” this record because it was not part of the
medical record submitted to her. But we construe Mr. Jones’s argument as seeking
reversal of the district court’s refusal to remand to the Commissioner to consider the
1997 record. A reviewing court “may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
The district court denied a remand under this provision because it determined
Mr. Jones had not shown good cause for failing to obtain and present the record at
the ALJ hearing. We review this decision for an abuse of discretion. See Wilson,
602 F.3d at 1140.
The district court did not abuse its discretion by denying a remand to the
Commissioner. In an effort to explain his failure to submit the record to the ALJ,
Mr. Jones complains that the ALJ surprised him and his counsel by unexpectedly
discounting some of his limitations in her written decision. Until he received that
decision, he argues, he was unaware that he needed to submit additional
documentation in support of his claim. But even after receiving the ALJ’s decision,
he did not submit the 1997 record, or any other new evidence, to the Appeals
9
Council. See id. at 1149-50 (stating claimant must show good cause for failing to
submit new evidence to the ALJ and the Appeals Council). Thus, he did not satisfy
the “good cause” requirement for a remand.2
5. Motion to Alter or Amend
Mr. Jones argues that the district court erred by denying his “Motion to Alter
or Amend Judgment and/or to Amend or Make Additional Findings and/or to Set
Aside Finding(s) and For New Trial.” See R. at 593-98, 607-09. His only argument
on this point in his opening brief refers us to what is “argued in said pleading” or “set
out [in] said pleading.” Aplt. Opening Br. at 5. This is not adequate appellate
argument, particularly where Mr. Jones’s motion raised eight claims of error,
supplemented by a separate reply brief in district court. See, e.g., Fulghum v.
Embarq Corp., 785 F.3d 395, 410 (10th Cir.) (deeming appellate argument
concerning denial of motion for reconsideration waived, where appellants merely
incorporated by reference arguments made and documents filed in the district court
2
The district court found that the 1997 record was “material” within the
meaning of § 405(g). “Evidence is material if the [Commissioner’s] decision might
reasonably have been different had the new evidence been before him when his
decision was rendered.” Wilson, 602 F.3d at 1148 (brackets and internal quotation
marks omitted). We have some doubt the 1997 record was material within this
definition. First, it predated Mr. Jones’s alleged onset date by over a decade.
Second, it is unclear from the record whether the post-surgical restrictions on
stooping, bending, lifting, and working overhead, which were expressed only in a
hearsay report about what another doctor said over the telephone, were intended to be
permanent. Finally, as the Commissioner points out, Mr. Jones actually performed
his past relevant work as a program worker in 2001 to 2003, after the 1997
restrictions were imposed.
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and did not specifically explain how denial was an abuse of discretion), cert. denied,
136 S. Ct. 537, and 136 S. Ct. 538 (2015). We therefore deem this argument waived.
6. Mrs. Jones’s Statement
Mr. Jones’s wife submitted a third-party function report in support of his
claim. R. at 210-17. Among other things, she stated that he “[f]alls asleep often
during the day,” that he cannot “reach, squat, kneel or lift without difficulty,” and
that his “pacemaker limits physical activity.” Id. at 211. Mr. Jones complains that
the ALJ “arbitrarily discounted” this evidence. Aplt. Opening Br. at 7. But the ALJ
considered and thoroughly discussed the statement, finding among other things that
Mrs. Jones’s lay opinions based on casual observation did not outweigh the
accumulated medical evidence. See R. at 39. The ALJ permissibly assigned little
weight to the third-party function report.
7. Postural Limitations in Dr. Alvarez’s Opinion
Mr. Jones complains in summary fashion that his “physician, Dr. Alvarez
submitted his opinion that I could do certain tasks occasionally” and then opines that
“[y]ou cannot obtain and maintain substantial employment when you can only
perform tasks occasionally.” Aplt. Opening Br. at 7. He appears to have raised this
issue in district court for the first time in his reply brief in support of his
reconsideration motion. See R. at 608. The district court did not specifically discuss
the argument, but elsewhere in its decision cited the general rule that arguments
raised for the first time in a reply brief are waived. Id. at 615. Thus, the argument
11
was not adequately preserved and ruled upon in district court, and we need not
consider it. See Cordova, 816 F.3d at 650 n.1.
But even if we were to consider it, he fails to show reversible error. The ALJ
discussed this aspect of Dr. Alvarez’s opinion, reasoning as follows:
Dr. Alvarez also indicated postural, manipulative, and environmental
limitations, as well as limitations on hearing, seeing, and speaking. The
“frequent” limitations have no support in the record and do not correspond
to any of his impairments or reported symptoms. The “occasional”
limitations, on climbing, stooping, crouching, and crawling, also do not
correspond to [Mr. Jones’s] impairments or his related symptoms.
Likewise, the environmental limitations do not correspond to his
impairments or reported symptoms. On this basis, the undersigned gives
this opinion only some weight in assessing [his] limitations.
R. at 39 (citation omitted) (emphasis added).
Mr. Jones fails to demonstrate that this analysis was erroneous.3
8. Conclusion
We affirm the judgment of the district court.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
3
Dr. Alvarez stated that Mr. Jones could only occasionally kneel, a limitation
the ALJ did not address in the paragraph we have cited. But Mr. Jones does not
make any specific argument that he needed to kneel to perform his past relevant
work. We note also that Mr. Jones also admitted in a Work History Report filed at
the agency level that his past relevant work as a program worker did not require him
to climb, stoop, kneel, crouch, or crawl. See R. at 228, 232. Thus, any error
concerning his ability to perform those functions as part of his past relevant work as
he actually performed it, likely was harmless.
12