Carr v. Commissioner, SSA

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 29, 2018
• Docket: 17-7077
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 29, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court CARLA LEE CARR,

Plaintiff - Appellant,

v. No. 17-7077 (D.C. No. 6:16-CV-00129-JHP-KEW) COMMISSIONER, SSA, (E.D. Okla.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________

Carla Lee Carr appeals a district court order affirming the Commissioner’s

denial of disability and supplemental security income benefits. Ms. Carr claims an

administrative law judge (ALJ) incorrectly evaluated the opinion of her mental health

case manager and posed inaccurate hypothetical questions to a vocational expert

(VE). Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we

affirm in part, reverse in part, and remand for further proceedings.

I

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Ms. Carr alleged she was disabled by complications from brain surgery, neck

and back pain, drowsiness, vision problems, incontinence, and depression. At a

hearing before an ALJ, she testified that she had previously worked as a money

counter at a casino and began experiencing vision loss caused by a brain tumor. In

2006, she underwent surgery to remove the tumor and afterwards received radiation

treatment. Later, she underwent a two-level spinal fusion and recovered enough to

return to work, but eventually she was forced to leave her job due to pain. By then,

she had fallen into a depression, and in 2012, she attempted suicide. She was

hospitalized and upon discharge received outpatient mental health treatment at Green

Country Behavioral Health Services (GCBHS). Her primary clinician at GCBHS was

Geraldine Lee, a certified case manager and rehabilitation specialist.

The ALJ also heard testimony from a VE. The ALJ asked the VE whether

someone with Ms. Carr’s limitations could return to her previous work, given that she

was diagnosed with organic mental disorder but could “understand, remember, and

carry out simple tasks under routine supervision.” Aplt. App., Vol. II at 62. The VE

replied that she could not because her impairments limited her to unskilled work.

The ALJ then asked whether there were unskilled jobs someone with such limitations

could perform, to which the VE replied that Ms. Carr could work as an inspector, an

assembler, and a masker. The ALJ added, however, that Ms. Carr could not perform

these jobs if her limitations were verified because “[s]he had lots of trouble with

concentration and remembering things.” Id. at 65.

2 Based on this and other evidence, the ALJ concluded that Ms. Carr was not

disabled at the fifth step of the disability-evaluation process. See Wall v. Astrue,

561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the process). The ALJ reasoned

that Ms. Carr retained the residual functional capacity (RFC) to perform light work

subject to certain non-exertional limitations:

Although [Ms. Carr’s] short-term memory and pace are slowed, she retains the ability to understand, remember and carry out simple and some more complex tasks under routine supervision. [She] can relate to others on a superficial work basis and to a lesser degree with the general public. [She] can adapt to a work situation.

Aplt. App., Vol. II at 14. Given these findings and the VE’s testimony that she could

transition to unskilled work, the ALJ concluded that Ms. Carr was not entitled to

benefits. The appeals council denied review, and the district court affirmed.1

II

“We review the Commissioner’s decision to determine whether it is supported

by substantial evidence and whether correct legal standards were applied.” Qualls v.

Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). “In conducting our review, we may

neither reweigh the evidence nor substitute our judgment for that of the

Commissioner.” Id.

On appeal, Ms. Carr contends the ALJ incorrectly evaluated a report prepared

by Ms. Lee and improperly omitted her memory and pace deficits from his

hypothetical questions to the VE. We see no reversible error in the ALJ’s analysis of

1 A federal magistrate judge recommended that the Commissioner’s decision be reversed and remanded for further administrative proceedings, but on de novo review, the district court rejected the magistrate judge’s report and recommendation. 3 Ms. Lee’s report, but we agree the ALJ failed to accurately describe Ms. Carr’s

mental limitations in his hypothetical questions.

A. Clinician’s Report

We first consider Ms. Lee’s report. In June 2014, Ms. Lee wrote a one-page

letter indicating that she was Ms. Carr’s primary clinician at GCBHS. She indicated

that Ms. Carr had been diagnosed with major depression and post-traumatic stress

disorder. She further stated that Ms. Carr experienced “moderate to severe

depressive symptoms on a daily basis,” which made it difficult for her to function

most days. Aplt. App., Vol. IV at 667. Additionally, she indicated that Ms. Carr had

“no motivation for 90% of the time and ha[d] several days of the week where she

[wa]s not able to get out of bed.” Id. According to Ms. Lee, Ms. Carr felt “helpless

most days[,] especially since she ha[d] little independence.” Id. She also felt

unworthy of her family’s support and was “angry because she [wa]s not able to work

and provide for herself.” Id. Ms. Lee added that Ms. Carr had a loss of appetite,

insomnia, “problems with being able to remember things[,] and . . . trouble being

able to focus and concentrate on things.” Id.

The ALJ summarized the report but did not weigh Ms. Lee’s statements or

describe what impact, if any, they had on his decision. Ms. Carr contends that the

ALJ’s failure to expressly weigh and analyze Ms. Lee’s report constitutes reversible

error, but we disagree.

It is well-established that an ALJ must consider all the medical source

evidence and discuss the weight he gives to each opinion. 20 C.F.R. §§ 404.1527(c),

4 416.927(c); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). But the

regulations distinguish between “acceptable medical sources,” medical sources who

are not “acceptable medical sources,” and “other sources.” Social Security Ruling

(SSR) 06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006). “Only acceptable medical

sources can provide evidence to establish the existence of a medically determinable

impairment, only they can provide medical opinions, and only they can be considered

treating sources.” Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (citations

and internal quotation marks omitted). An ALJ should still explain the weight given

to opinions from other sources. Keyes-Zachary, 695 F.3d at 1163. And “the factors

for weighing the opinions of acceptable medical sources set out in 20 C.F.R.

§ 404.1527[(c)] and § 416.927[(c)] apply equally to ‘all opinions from medical

sources who are not ‘acceptable medical sources’ as well as from ‘other

[non-medical] sources.’” Frantz, 509 F.3d at 1302 (quoting SSR 06-03p, 2006 WL

2329939, at *4). But an ALJ’s evaluation of an opinion from an other non-medical

source “is sufficient if it permits us to ‘follow the adjudicator’s reasoning.’”

Keyes-Zachary, 695 F.3d at 1164 (quoting SSR 06-03p, 2006 WL 2329939, at *6).

Here, Ms. Lee identified herself as a certified case manager and rehabilitation

specialist. Consequently, her opinion was that of an “other non-medical source,” see

SSR 06-03p, 2006 WL 2329939, at *2 (designating rehabilitation counselors as other

“non-medical sources”), and the ALJ’s analysis was sufficient so long as we can

follow his reasoning. On this score, we can see that the ALJ accommodated

Ms. Lee’s opinion that Ms. Carr had memory and concentration problems because the

5 RFC recognized she had difficulty with memory and pace. “There is no reason to

believe that a further analysis or weighing of this opinion could advance [Ms. Carr’s]

claim of disability.” Keyes-Zachary, 695 F.3d at 1163; see also Mays v. Colvin,

739 F.3d 569, 578 (10th Cir. 2014) (“[T]he need for express analysis is weakened

when the ALJ does not need to reject or weigh evidence unfavorably in order to

determine a claimant’s RFC.” (brackets and internal quotation marks omitted)).

Ms. Lee’s report also contained several statements relaying how Ms. Carr felt

angry and helpless about her situation. But these statements were not “opinions

concerning her ‘symptoms, diagnosis and prognosis, what she can still do despite the

impairment(s), or her physical and mental restrictions.’” Keyes-Zachary, 695 F.3d at

1164 (quoting SSR 06-03p, 2006 WL 2329939, at *5 (brackets omitted)). Thus, the

ALJ was not obligated to weigh these statements.

As for Ms. Lee’s statements that Ms. Carr lacked motivation 90% of the time

and could not get out of bed several days a week, these were arguably opinions about

Ms. Carr’s symptoms, but it is clear the ALJ gave these statements little or no weight

because the RFC does not reflect them. Ms. Carr suggests the ALJ could not simply

reject Ms. Lee’s statements because she was a treating source, but she was not an

“acceptable medical source” and therefore cannot qualify as a treating source. See

Frantz, 509 F.3d at 1301; see also 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)

(“Treating source means your own acceptable medical source . . . .”). Ms. Carr

correctly points out that an opinion from a non-medical source “may, under certain

circumstances, properly be determined to outweigh the opinion from a medical

6 source,” SSR 06-03p, 2006 WL 2329939, at *6, but there was evidence from several

acceptable medical sources who did not assess similarly debilitating symptoms.

Indeed, Dr. William Cooper, an examining physician, concluded that Ms. Carr had

severe depression but her “[t]hought processes appear[ed] normal.” Aplt. App.,

Vol. III at 362. Larry Vaught, Ph.D., a psychologist, performed a mental status exam

and found that she “describe[d] some fairly serious depression” with memory

problems and slowed concentration, persistence, and pace, although he did not assess

any other specific limitations. Id. at 369. An agency psychologist evaluated the

evidence and assessed Ms. Carr’s mental RFC to be virtually identical to that

formulated by the ALJ. And a second agency psychologist concurred with that

assessment, noting that Ms. Carr’s prior mental status exam was normal and she

“appear[ed] capable of semi-skilled work” despite “some mental limitations.”

Id., Vol. II at 91. It is not our role to reweigh this evidence, and the ALJ was entitled

to rely on it to discount Ms. Lee’s more restrictive statements.

B. Hypothetical Questions

Ms. Carr also contends the ALJ failed to account for her memory and pace

deficits in his hypothetical questions. The ALJ found she had moderate difficulties

with concentration, persistence, or pace, noting her “problems with concentration and

memory after her brain surgery.” Id. at 13. The ALJ included these deficits in his

RFC assessment but excluded them from his dispositive hypothetical question to the

VE, stating only that she had the “ability to understand, remember, and carry out

simple tasks under routine supervision,” id. at 62. The Commissioner acknowledges

7 the omission but asserts that Ms. Carr’s memory and pace deficits were adequately

captured in the ALJ’s restriction to simple tasks, which the Commissioner equates

with unskilled work. See 20 C.F.R. §§ 404.1568(a), 416.968(a) (“Unskilled work is

work which needs little or no judgment to do simple duties . . . .”). The

Commissioner says that “such moderate mental limitations may be accounted for

with an RFC restricting a claimant to unskilled work.” Aplee. Br. at 19 (citing Vigil

v. Colvin, 805 F.3d 1199, 1203-04 (10th Cir. 2015)).

We agree that an ALJ may find and explain how restricting a claimant to

unskilled work accounts for their moderate mental limitations when formulating a

claimant’s RFC. See Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016); Vigil,

805 F.3d at 1203-04. But for purposes of articulating an accurate hypothetical

question to a VE, we have held that an ALJ’s restriction to simple or unskilled work

generally does not capture the claimant’s functionally distinct mental limitations.

See Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012). This is because

“[t]he basic mental demands of competitive, remunerative, unskilled work include the

abilities (on a sustained basis) to understand, carry out, and remember simple

instructions; to respond appropriately to supervision, coworkers, and usual work

situations; and to deal with changes in a routine work setting.” SSR 85-15, 1985 WL

56857, at *4 (1985). These abilities are work-related mental activities, see id.; SSR

96-8p, 1996 WL 374184, at *6 (1996), and when a claimant’s moderate mental

limitations impair these basic abilities, a restriction to “unskilled” work may not

accurately describe the claimant’s true mental functioning. Thus, an ALJ must

8 express a claimant’s non-exertional limitations “in terms of work-related functions.”

SSR 96-8p, 1996 WL 374184, at *6.

Here, the hypothetical indicated that Ms. Carr could “understand, remember,

and carry out simple tasks.” Aplt. App., Vol. II at 62. Assuming simple tasks

denotes unskilled work, the hypothetical contains no reference to Ms. Carr’s memory

and pace deficits, which were based on the ALJ’s finding that she had moderate

difficulties with concentration, persistence, or pace. Instead, the hypothetical

seemingly contradicted the ALJ’s findings by stating that “she could remain attentive

and responsive in a work setting and carry out work assignments satisfactorily.” Id.

at 63. Further, the ALJ failed to inquire or explain how Ms. Carr could perform the

jobs identified by the VE with her moderate mental limitations. Under these

circumstances, the hypothetical failed to describe with precision all of Ms. Carr’s

mental limitations. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)

(“Testimony elicited by hypothetical questions that do not relate with precision all of

a claimant’s impairments cannot constitute substantial evidence to support the

[Commissioner’s] decision.” (brackets and internal quotation marks omitted)).

The Commissioner contends it is “obvious” that “the language used in the

RFC finding clearly shows that . . . the difficulties with pace and memory were

adequately captured by the limitation to primarily simple tasks.” Aplee. Br. at 18.

That classification might suffice for purposes of assessing a claimant’s RFC, which

as the Commissioner points out represents “‘the most [a claimant] can still do despite

[his or her] limitations.’” Id. (quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)).

9 But restricting a claimant to unskilled work does not explain the extent to which a

claimant’s mental limitations erode the unskilled occupational base. Although “a

nonexertional impairment can have a negligible effect on the range of jobs available,

[t]he ALJ . . . must back such a finding of negligible effect with the evidence to

substantiate it.” Talbot v. Heckler, 814 F.2d 1456, 1465 (10th Cir. 1987) (citations

omitted). In Vigil, we were satisfied with the ALJ’s RFC analysis because the ALJ

identified and explained the specific evidence demonstrating that the claimant

“retained enough memory and concentration to perform at least simple tasks.”

805 F.3d at 1203-04. We cautioned, however, that “[t]here may be cases in which an

ALJ’s limitation to ‘unskilled’ work does not adequately address a claimant’s mental

limitations.” Id. at 1204 (citing Chapo, 682 F.3d at 1290 n.3).

Unlike Vigil, the ALJ did not explain how Ms. Carr can satisfy the demands of

unskilled work with her mental limitations. Although the ALJ cited evidence that

Ms. Carr could “perform at the light exertional level with the non-exertional

limitations,” Aplt. App., Vol. II at 19, this tells us nothing about whether she can

meet the demands of unskilled work with her limitations. Moreover, the omission

was not harmless. The VE testified that if Ms. Carr’s limitations were verified, she

would be unable to perform any of the identified jobs because “[s]he had lots of

trouble with concentration and remembering things.” Id. at 65. Yet the ALJ found

that she had memory and pace deficits, and he incorporated them into the RFC

assessment. His failure to include them in the dispositive hypothetical question

prevents the VE’s testimony from constituting substantial evidence upon which the

10 ALJ could predicate his step-five conclusion that Ms. Carr could transition to other

work. Accordingly, we remand this case to the Commissioner for a proper step-five

evaluation of Ms. Carr’s non-exertional limitations.

III

The judgment of the district court is affirmed in part and reversed in part, and

this case is remanded to the district court with instructions to remand to the

Commissioner for further proceedings consistent with this Order and Judgment.

Entered for the Court

Mary Beck Briscoe Circuit Judge