Mann v. Astrue

284 F. App'x 567
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 14, 2008
Docket08-5003
StatusUnpublished
Cited by3 cases

This text of 284 F. App'x 567 (Mann v. Astrue) 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
Mann v. Astrue, 284 F. App'x 567 (10th Cir. 2008).

Opinion

ORDER AND JUDGMENT *

WADE BRORBY, Senior Circuit Judge.

Suzette L. Mann appeals from a district court order that affirmed the Commissioner’s denial of disability insurance benefits (DIB) and supplemental security income (SSI). She argues that the Administrative Law Judge (ALJ) assigned to her case erred in (1) determining her residual functional capacity (RFC) and (2) discounting her credibility. We affirm.

Background

Mann has worked in the fast-food and aircraft-assembly industries. She claims that she can no longer work because of pain from a fractured right ankle that Dr. Karl Sauer surgically repaired in February 2001. Several weeks after that surgery, Dr. Sauer noted that “[t]he hardware [was] in [an] acceptable position,” but that one of the “three Kirschner wires” used to immobilize the fracture was “protrud[ing] through the posterior cortex” and “could be causing [Mann] some of the intermittent discomfort that she has.” Aplt.App. at 107, 122. Four months after the surgery, in June 2001, Dr. Sauer found that there was “no instability involving the right ankle” and that the fractures were “in good position,” with “good healing.” Id. at 121. He also noted that Mann was “having no problems.” Id.

Dr. Donald Riley saw Mann in January 2002 for right ankle pain, and considered having her “evaluat[ed] for possible hardware removal.” Id. at 124. Additionally, he diagnosed her with “probable osteoarthritis of the right ankle” and prescribed an anti-inflammatory drug. Id. Dr. Riley next saw Mann in April 2002, when he refilled her prescription and recommended that she see an orthopedic specialist for her ankle. Mann quit working two months later, in June 2002.

In February 2003, Mann went to the emergency room, complaining of ankle pain. X-rays revealed that one of the Kirschner wires was “loose.” Id. at 129. The attending physician, Dr. Tony Hill, diagnosed Mann with right ankle pain, but he questioned the significance of the loose wire. Id. at 130. He prescribed Marin an anti-inflammatory drug and a pain reliever, and he recommended that she see an orthopedic specialist.

Mann did not seek further medical treatment. Instead, she sought DIB and SSI in December 2003. Dr. Angelo Dalessandro, a consultative physician, examined Mann and noted that she walked with a slight limp and used a cane, but had a “normal gait to speed, stability, and safety” and could “ambulate without [her] cane.” Id. at 136. Two agency consultants reviewed Mann’s records and concluded that she had the RFC to occasionally lift and carry ten pounds, frequently lift and carry five to ten pounds, stand and *570 walk two hours in a work day, and sit for six hours in a work day.

At her disability hearing in August 2005, Mann testified that she has not sought medical treatment since her February 2008 emergency-room visit because she cannot afford it. As for her limitations, she testified that she uses a cane, can stand for only two minutes, and cannot “walk very far” before having to sit and “prop [her ankle] up.” Id. at 181. When her pain becomes “really” bad she takes Ibuprofen. Id. at 185. But her testimony is not clear as to the extent it relieves her pain.

A vocational expert (VE) testified that if Mann’s testimony were to be believed, Mann could not perform her past work or any other work in the national economy. But in response to a hypothetical posed by the ALJ, the VE identified work in the national economy, such as a check cashier, that could be performed by a claimant who possesses the same RFC identified by the agency consultants and who also suffers from “mild to moderate to occasional chronic pain,” id. at 188, uses a cane, and needs to “shift her weight” while standing or sitting, id. at 189.

In his written decision, the ALJ adopted the consultants’ RFC determinations and added the other limitations from the hypothetical he posed to the VE. The ALJ then concluded at step five of the familiar five-step sequential evaluation process that Mann was not disabled, as there were jobs in the national economy that she could perform. See Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir.2005) (noting that when a disability claimant shows that her limitations preclude past work, the burden shifts to the Commissioner at step five “to show that the claimant retains sufficient RFC to perform work in the national economy, given her age, education, and work experience”). In doing so, the ALJ found Mann’s testimony about her pain not entirely credible.

After the Appeals Council denied Mann’s request for review, she sought relief from the federal district court. Unsuccessful, she now appeals.

Discussion

I. Standard of Review

Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). In reviewing the ALJ’s decision, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Sens., 933 F.2d 799, 800 (10th Cir.1991). Instead, we review the ALJ’s decision only “to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Doyal, 331 F.3d at 760.

II. RFC

Mann argues that the ALJ erred in formulating her RFC because he ignored “[t]he findings of Mann’s treating physicians, including the instruction^] to see an orthopedic specialist and [the] finding of loose surgical hardware.” Aplt. Br. at 10-11. She relies on the well-settled rule that the ALJ “may reject a treating physician’s opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.2002) (quotation and italics omitted). But the ALJ did not reject any treating physician’s opinion. Indeed, none of Mann’s treating physicians offered any opinion about her functional limitations. And we cannot *571 fault the ALJ for failing to divine some limitation from Dr. Riley and Dr. Hill’s instructions that Mann see a specialist. As for the surgical hardware, its relevance is unclear. Dr. Sauer noted that a Kirschner wire was “protruding].” Aplt.App. at 122. But he surmised that it was causing only “intermittent discomfort,” id., and he did not mention it all in his final progress note, indicating instead that Mann was “having no problems,” id. at 121. Dr.

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284 F. App'x 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-astrue-ca10-2008.