Confere v. Barnhart

235 F. App'x 701
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 24, 2007
Docket06-4217
StatusUnpublished
Cited by3 cases

This text of 235 F. App'x 701 (Confere v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Confere v. Barnhart, 235 F. App'x 701 (10th Cir. 2007).

Opinion

ORDER AND JUDGMENT **

MARY BECK BRISCOE, Circuit Judge.

Sheryl Confere, proceeding pro se, appeals from an order of the district court affirming the Commissioner’s decision denying her application for disability insurance and supplemental security income benefits. The Commissioner denied her claim initially and upon reconsideration. After a hearing, the Administrative Law Judge (ALJ) determined that Ms. Confere was not eligible for benefits, concluding that she was not disabled at step five of *702 the analysis because she could perform a significant number of jobs in the national economy. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (explaining five-step process for evaluating claims for disability benefits). The Appeals Council denied Ms. Confere’s request for review, making the ALJ’s decision the Commissioner’s final decision. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).

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. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996). On appeal, Ms. Confere argues that the district court incorrectly decided the facts because “Social Security had evidence that went over multiple points of condition, even stating severity.” Aplt. Br. at 4. Because Ms. Confere is proceeding pro se, we must liberally construe her brief. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991). We construe this as an argument that the ALJ ignored evidence indicating the severity of Ms. Confere’s condition.

Ms. Confere did not file a substantive brief in the district court. Instead, she filed a series of letters suggesting the existence of additional evidence. In general, we consider an argument waived when it has not been presented to the district court. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994). If there are “compelling reasons,” however, we can excuse the waiver. Id. This case presents such a circumstance. Ms. Confere is pro se and suffers from significant mental limitations. In addition, the ALJ’s error could impact the ultimate finding that Ms. Confere was not disabled.

Ms. Confere was thirty-two years old with a high school education and three years of higher education at the time of the alleged onset of her disability on November 5, 1999. She alleges that she became disabled due to migraine headaches, numbness, blackouts, periodic loss of use of parts of limbs, occasional collapse of legs, and twitching. The ALJ found that Ms. Confere had not engaged in substantial gainful activity since the alleged onset date of her disability.

After reviewing the medical evidence, the ALJ determined that Ms. Confere had the following medically determinable severe impairments: “(1) headaches (controlled with conservative medication); (2) Somatoform disorder, i.e., ‘paralysis’ episodes — ‘blackouts,’ ‘seizures,’ or dissassociative disorders, (3) affective disorder— depressive type, and (4) borderline personality traits, impairments that are severe within the meaning of the Regulations.” Aplee. App. at 16. He concluded, however, that none of these impairments met any of the relevant listings. The ALJ then made a determination regarding Ms. Confere’s residual functional capacity (RFC). The relevant portion of her RFC deals with her mental limitations and states: “Claimant’s ability to focus her attention and concentrate, to understand, remember and carry out detailed instructions, and to respond appropriately to changes in work setting is moderately impaired.” Id. at 19 (emphasis added).

The evidence reflects that Dr. Peter Heinbecker performed a consultative psychiatric evaluation of Ms. Confere. He diagnosed Ms. Confere with “Major depression, recurrent, severe”; “Somatization disorder”; “Dissociative disorder”; and “Borderline personality traits.” Id. at 238. He concluded that Ms. Confere’s “ability to understand and remember seems to be moderately impaired. Her *703 ability to concentrate and persist seems to be significantly impaired. Her ability to socialize and adapt seems to be moderately impaired.” Id. at 238 (emphasis added).

Consistent with Dr. Heinbecker’s assessment, Dr. M. Egan, a state agency psychiatrist, determined based on her review of the medical records that Ms. Confere had marked difficulties in maintaining concentration, persistence, or pace. Id. at 346. Dr. Egan also concluded that Ms. Confere was “[mjarkedly limited” in her “ability to understand and remember detailed instructions” and in her “ability to carry out detailed instructions.” Id. at 327. In addition, Dr. Egan determined that Ms. Confere was moderately limited in nine other areas. Dr. Egan’s assessment was affirmed by another state agency physician. Id. at 334, 336.

The ALJ’s RFC determination reflects some of the limitations identified by Dr. Heinbecker and Dr. Egan, but does not include their assessment that Ms. Confere has marked difficulties in maintaining concentration, persistence, or pace and Dr. Egan’s conclusion that Ms. Confere was markedly limited in her ability to understand, remember and carry out detailed instructions. The ALJ’s RFC also omits the nine other areas in which Dr. Egan found Ms. Confere to be moderately impaired.

The ALJ mentions Dr. Heinbecker’s assessment during his discussion of the evidence, id. at 16, but he does not state that he is rejecting any part of it and gives no indication as to why he would disregard Dr. Heinbecker’s conclusion that Ms. Confere was significantly impaired in her ability to concentrate and persist. After making the RFC determination, the ALJ also stated:

This conclusion is supported by the findings and opinions of the Stage Agency physicians who previously examined the record and reported their opinions at exhibits 15F-17F. Such opinions by program physicians are afforded the weight of expert medical opinions by non-examining physicians in accordance with Social Security Ruling 96-6p. The undersigned accepts the opinions of the State Agency physicians and has incorporated them into his assessment of the claimant’s residual functional capacity.

Id. at 20 (emphasis added). This statement is not accurate.

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235 F. App'x 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/confere-v-barnhart-ca10-2007.