Kirkland v. Apfel

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 13, 1999
• Docket: 98-5224
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 13 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

MICHAEL L. KIRKLAND,

Plaintiff-Appellant,

v. No. 98-5224 (D.C. No. 97-CV-642-M) KENNETH S. APFEL, Commissioner, (N.D. Okla.) Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , 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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Claimant Michael L. Kirkland appeals the magistrate judge’s order

affirming the Commissioner of Social Security’s denial of his application for

supplemental security income disability benefits and dismissal, as res judicata,

of his application for social security disability insurance benefits. Claimant, a

forty-six-year-old man with a tenth grade education, a GED, and some trade

school classes, claims disability from September 11, 1990, due to back pain,

left-side numbness, and mental problems. The ALJ determined that although

claimant could not return to his past relevant work as a cook, construction

laborer, vulcanizer in a tire shop, landscaper, or worker in a machine shop or

gas station, he could do a full range of light work limited to simple repetitive

jobs requiring little contact with coworkers or the public.

Claimant filed his first application for Title II disability benefits on

December 5, 1980. On March 24, 1981, this application was denied initially and

on reconsideration. Claimant did not request a hearing or further appeal this

decision.

On October 11, 1991, claimant filed his second application for Title II

disability benefits which was denied initially. Claimant again sought

reconsideration which was denied on June 12, 1992. Although claimant was

informed that he could lose benefits if he failed to appeal within sixty days, he

did not seek any further review of the denial decision.

-2- On December 23, 1993, claimant filed his latest applications for both

Title II and Title XVI disability benefits. He was again denied initially and on

reconsideration. This time, however, claimant requested and received a hearing

before an ALJ. On April 24, 1995, following the hearing, the ALJ issued an order

denying claimant’s application for Title XVI supplemental security income

benefits and a separate order dismissing his request for a hearing on his

application for Title II disability benefits as res judicata. The Appeals Council

denied review, and the district court affirmed.

On appeal, claimant asserts that (1) the ALJ’s findings regarding claimant’s

mental impairments were not supported by substantial evidence; (2) the ALJ

posed an incomplete hypothetical question to the vocational expert; and (3) the

ALJ erroneously dismissed claimant’s application for disability benefits as

res judicata. Our review of the Commissioner’s decision is limited to determining

whether the decision is supported by substantial evidence and whether the

Commissioner applied correct legal standards. See Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the

[Commissioner’s] decision is supported by substantial evidence there must be

sufficient relevant evidence in the record that a reasonable person might deem

adequate to support the ultimate conclusion.” Bernal v. Bowen, 851 F.2d 297,

-3- 299 (10th Cir. 1988). We may neither reweigh the evidence nor substitute our

judgment for that of the Commissioner. See id.

Initially, claimant asserts that the ALJ failed to evaluate properly his

mental impairments and his residual functional capacity (RFC) to do light work.

Where there is evidence of a disabling mental impairment, the Commissioner

must evaluate the mental impairment pursuant to the procedure set forth in

20 C.F.R. § 416.920a. See Cruse v. United States Dep’t of Health & Human

Servs., 49 F.3d 614, 617 (10th Cir. 1995). This procedure requires the ALJ to

complete a Psychiatric Review Technique Form (PRT). See id. First, the ALJ

must determine the existence of “certain medical findings which have been

found especially relevant to the ability to work,” (Part A criteria). 20 C.F.R.

§ 416.920a(b)(2). Next, the ALJ must evaluate and rate the claimant’s ability

to function despite the mental impairment (Part B criteria). See id.

§ 416.920a(b)(3).

Here, the ALJ completed a PRT at the time of his decision. In Part A, the

ALJ indicated the presence of a personality disorder evidenced by “[i]ntense and

unstable interpersonal relationships and impulsive and damaging behavior.”

R. Vol. II at 24-25. In rating the severity of the impairment, the ALJ found only

slight restriction of daily activities and moderate problems with maintaining

social functioning. He determined that claimant seldom had difficulties with

-4- concentration, persistence, or pace and never had an episode of deterioration or

decompensation in a work or work-like setting.

Claimant asserts that the ALJ failed adequately to discuss the evidence on

which he based his conclusions on the PRT form, and that his conclusions

“differed significantly” from the evidence presented in the case. 1 Appellant’s

Br. at 31. We do not agree. The ALJ fully discussed his conclusions on the PRT

form, finding that the only objective evidence of mental impairment was the

evaluation of Dr. Thomas A. Goodman on February 28, 1994, in which he

concluded that claimant had “minimal brain damage, by history, without any

current confirmation, untreated currently.” R. Vol. II at 360. Dr. Goodman

diagnosed claimant has having an “[a]ntisocial personality disorder with

borderline features, currently untreated.” Id. He further concluded, however,

that he could discern no reason why claimant could not do his past relevant work.

See id.

Although it is true, as claimant asserts, that the only evidence the ALJ

discussed in detail was Dr. Goodman’s report, Dr. Goodman’s findings and

conclusions, obviously the most recent, were duplicative of those found by

1 The ALJ completed the PRT form without the aid of a psychiatrist or a psychologist. However, the record on appeal contains two additional PRT forms completed in 1992 and 1994 by psychologists which reflect basically the same conclusions as those drawn by the ALJ. See R. Vol. II at 112-21, 149-67.

-5- Dr. Merli Fermo in 1981, see id. at 286-87, Dr. Cullen Mancuso in 1981, see id.

at 290-91, and Dr. Ronald Passmore in 1992, see id. at 300-02. In fact, the ALJ

stated in his decision that even though he was avoiding discussion of duplicative

evidence, he had considered all evidence in the record in reaching his

conclusions. See id. at 20. Therefore, contrary to claimant’s contention, the ALJ

fully considered and discussed the evidence he relied on in completing the Part A

criteria of the PRT form.

Second, claimant contends that the ALJ failed to link his findings on the

PRT form to the evidence as required by this court in Washington v. Shalala,

37 F.3d 1437 (10th Cir. 1994). In Washington, this court held:

In assessing a claimant’s mental RFC, the ALJ should consider, among other things, the claimant’s ability to engage in the activities of daily living; to interact appropriately with the public, supervisors, and co-workers; to focus long enough to complete tasks in a timely fashion; and to adapt to stressful circumstances without either withdrawing from the situation or experiencing increased signs and symptoms of the claimant’s mental disorder.

Id. at 1440. These factors parallel those found in Part B of the PRT form.

Again, contrary to claimant’s contention, the ALJ discussed all of

these factors, concluding that claimant’s daily activities were only minimally

impacted, that he had moderate difficulty in relating and interacting with others

(as evidenced by the ALJ’s limitation on his ability to do the full range of light

work), that he could complete tasks in a timely fashion, and that, although

-6- claimant’s work history indicated an inability to stay with a job very long, he had

no history of withdrawing or decompensating in stressful work situations.

Claimant argues that the ALJ did not consider the fact that he had been

married fourteen times in determining that he was only moderately impaired in his

personal relationships. The ALJ’s decision, however, reflects that these are

exactly the kind of facts he did consider in finding claimant moderately impaired

and in restricting his light work ability to those jobs requiring little or no contact

with the public or co-workers. Moreover, it is equally clear that the ALJ

considered the opinions of claimant’s examining psychiatrists and psychologists

and the results of claimant’s psychological and IQ testing when concluding that

claimant had some difficulty with concentration, persistence, or pace. This

manifested itself in the ALJ’s determination that claimant was limited to light

work involving simple repetitive tasks. The ALJ expressly stated that he

considered “the entire record,” whether or not certain items of evidence were

specifically mentioned in the decision. See R. Vol. II at 20. Here, the ALJ did

not conclude that claimant did not suffer from a mental impairment; rather he

concluded that despite claimant’s severe mental impairment, he could perform

a limited range of light work, a conclusion that is supported by substantial

evidence in the record.

-7- Next, claimant asserts that the hypothetical question posed to the vocational

expert (VE) at the hearing was incomplete in that it only included the restriction

that claimant be limited in his contact with the public and co-workers. Claimant

asserts that the ALJ’s hypothetical question failed to consider the serious nature

of Dr. Goodman’s diagnosis of antisocial personality disorder and borderline

personality disorder. Claimant asserts that the question “erroneously minimize[d]

the Appellant’s mental impairments and [did] not represent the Appellant’s true

condition.” Appellant’s Br. at 39.

The hypothetical question posed to the VE, however, reflected the

limitations relevant to the light work the ALJ concluded claimant could perform.

Contrary to claimant’s assertion, the ALJ was not required to include limitations

or restrictions in the hypothetical that were not supported by substantial evidence.

See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). Therefore, we

conclude that the hypothetical question posed to the VE was complete and proper.

In a separate order, the ALJ found claimant’s request for a hearing on his

application for Title II disability benefits barred on the grounds of administrative

res judicata because claimant failed to appeal his previous denial of benefits on

June 12, 1992, and his insured status for Title II benefits expired on September

30, 1990. Moreover, the ALJ expressly refused to reopen claimant’s previously

adjudicated claim for benefits. See R. Vol. II at 29-30.

-8- In Brown v. Sullivan, 912 F.2d 1194 (10th Cir. 1990), we held that

“[n]either the district court nor this court has jurisdiction to review the

[Commissioner’s] refusal to reopen a claim for disability benefits or

determination such claim is res judicata.” Id. at 1196 (citing Califano v. Sanders,

430 U.S. 99, 107-09 (1977) (holding that decision not to reopen is not reviewable

by federal courts)). Therefore, we hold that we lack jurisdiction to review the

Commissioner’s discretionary decision not to reopen claimant’s prior claim on

res judicata grounds. 2 See 42 U.S.C. § 405(g); Brown, 912 F.2d at 1196.

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge

2 Contrary to claimant’s argument, the Appeals Council’s failure to expressly discuss the ALJ’s dismissal decision in its general denial of review did not constitute an implicit reopening of claimant’s previous proceedings. See Taylor v. Heckler , 738 F.2d 1112, 1115 (10th Cir. 1984) (holding that de facto reopening occurred when ALJ did not dispose of claim as res judicata, did not expressly refuse to reopen, reviewed case on merits, and considered additional evidence).

-9-