Morgan v. Barnhart

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 4, 2007
• Docket: 06-5145
• Status: Unpublished

Opinion

F IL E D United States Court of Appeals Tenth Circuit U N IT E D ST A T E S C O U R T O F A PP E A L S June 4, 2007 FO R T H E T E N T H C IR C U IT Elisabeth A. Shumaker Clerk of Court

C HRISTIN E M O RG A N ,

Plaintiff-Appellant,

v. No. 06-5145 (D.C. No. 05-CV-318-M ) M ICH AEL J. ASTRU E, * (N.D. Okla.) Commissioner of Social Security Administration,

Defendant-Appellee.

O R D E R A N D JU D G M E N T * *

Before B R ISC O E , M cK A Y , and G O R SU C H , Circuit Judges.

Christine M organ appeals the Commissioner’s denial of Disability

Insurance Benefits (DIB) and Supplemental Security Income (SSI). The district

* Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for Jo Anne B. Barnhart as appellee in this appeal. ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. court affirmed the Commissioner’s decision, and exercising jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we now affirm the district court.

I.

M s. M organ is seeking benefits for the closed period dating August 2,

2002, through February 13, 2004. She claims disability from spinal impairment,

status post discectomy, hip impairments, and hypertension. After a hearing, an

administrative law judge (ALJ) concluded at step five of the five-step sequential

evaluation process, see 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988) (explaining the five-step process), that she was not

disabled because she retained the residual functional capacity (RFC) to perform a

significant range of light work. The Appeals Council denied review, and the

district court affirmed the ALJ’s decision.

M s. M organ subsequently filed this appeal in which she argues that the

ALJ: (1) failed to adequately explain why he found her unimpaired at step three

of the analysis; and (2) incorrectly assessed her RFC.

II.

Because the Appeals Council denied review, the ALJ’s decision constitutes

the final agency decision. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

Our review of the agency’s decision is limited to determining whether it is

supported by substantial evidence and whether the Commissioner applied the

-2- correct legal standards. M adrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006).

In making these determinations, “we neither reweigh the evidence nor substitute

our judgment for that of the agency.” Casias v. Sec’y of Health & H um an Servs.,

933 F.2d 799, 800 (10th Cir. 1991).

A . Step T hree Determination

M s. M organ first claims the ALJ failed to adequately explain why he found

her unimpaired at step three. Specifically, she contends the ALJ did not consider

the medical reports of Dr. Richard Hastings, one of her treating physicians who

she claim s provided evidence that satisfies the requirements for Listing 1.04(A )

(spinal impairments), 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A .

Step three of the sequential evaluation process requires the ALJ to

determine “whether the claimant’s impairment is equivalent to one of a number of

listed impairments that the [Commissioner] acknowledges as so severe as to

preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009

(10th Cir. 1996) (quotation omitted). If the ALJ finds that the claimant does not

meet a listed impairment, he is “required to discuss the evidence and explain why

he found that [the claimant] was not disabled at step three.” Id. The ALJ is not

required to discuss every piece of evidence, but “[t]he record must demonstrate

that the ALJ considered all of the evidence.” Id. at 1009-1010.

-3- In this case, the ALJ determined that M s. M organ had a severe impairment,

but that her impairment was not severe enough to satisfy Listing 1.04. In making

this determination, the ALJ examined M s. M organ’s medical history from M ay

17, 1996, and acknowledged that she had “a longstanding history of back

problems.” Aplt. App. at 16. He reviewed M s. M organ’s symptoms and

treatments, including “chronic lower back pain,” “chronic fatigue,” and “recent

back surgery.” Id. The ALJ also specifically referenced a report from

Dr. Hastings dated M arch 8, 1999, stating, “Subsequent X-rays taken [i]n M arch

of 1999, revealed evidence of a disc bulge at L4-L5 which was consistent with

her complaints of right-sided radiculopathy. She was also noted to have L5-S1

epidural scar around the S1 nerve root.” Id.

Although M s. M organ insists this discussion is deficient because it does not

specifically reference another report from Dr. Hastings, the ALJ is not required to

discuss each and every piece of evidence. The ALJ’s reference to D r. Hastings’

M arch 8 report clearly shows that he considered Dr. Hastings’ opinion, just as he

considered the opinion of Dr. Brad Vogel, who performed surgery on

M s. M organ’s hand and noted that she had no significant complaints. The ALJ

likewise considered the opinion of Dr. Stephen Lee, who reported that although

M s. M organ complained of being unable to sit or stand for long periods, she was

nonetheless neurologically intact and able to heel-toe walk normally without an

-4- assistive device. Only after considering the opinions of these physicians, as w ell

as other medical evidence, did the ALJ conclude that, “The medical evidence

indicates that the claimant has impairments that are ‘severe’ within the meaning

of the Regulations but not ‘severe’ enough to meet or medically equal, either

singly or in combination to one of the impairments listed.” Aplt. A pp. at 17.

Because the administrative record demonstrates that the ALJ considered all the

evidence, including Dr. Hastings’ opinion, we will not disturb the ALJ’s decision.

B . R FC A ssessm ent

M s. M organ next contends that the ALJ’s RFC assessment was not based on

substantial evidence because he failed to account for all of her limitations and

improperly discredited her testimony.

1. Lim itations

M s. M organ’s contention that the ALJ’s RFC assessment fails to account

for all of her limitations, particularly her chronic back and heel pain, is belied by

the ALJ’s evaluation of her physicians’ treatment notes. For example, the ALJ

specifically acknowledged that Dr. Lee indicated that M s. M organ suffered from

“chronic back pain . . . and heel spurs.” Aplt. App. at 17. Likewise, the ALJ

recognized that Dr. Lee’s most recent treatment notes indicated that “she is being

treated for increased left knee pain and continued heel pain.” Id. Similarly, the

ALJ considered Dr. Rebecca Wackowski’s opinion that M s. M organ suffered from

-5- “[c]hronic low back pain, lumbar disk disease,” “[e]levated diastolic blood

pressure,” “irritable bowel,” and “recent surgery.” Id. at 111. Additionally, the

ALJ weighed the opinion of Dr. Christopher Chow, who noted that M s. M organ

had “low back pain/leg pain,” id. at 149, and treated her with muscle relaxants,

“Lortab for pain[, and] moist heat.” Id. at 152. Among other evidence cited by

the ALJ were treatment notes from January 2003 indicating that M s. M organ

suffered from “polyarthralgias, heel pain, gerd, muscle spasms, and neuropathy

L.E.” Id. at 188. Notwithstanding this evidence, however, the ALJ recognized

that “no treating or consultative physician opined during [the claimed period of

disability] that [M s. M organ] was unable to work at any exertional level or in any

modified environment.” Id. at 18. Still, the A LJ accounted for M s. M organ’s

testimony describing how she had trouble standing for long periods of time and

was required to take frequent breaks while working at W al-M art and the Cherokee

Casino. Then, after accounting for all of this evidence, the ALJ determined that

M s. M organ retained the RFC to:

lift up to 20 pounds occasionally, and up to 10 pounds frequently. She is able to sit up to one hour at a time, up to 6 hours in an 8 hour work day. Furthermore, she is able to stand or walk up to one hour at a time, up to 4 hours (each) in an 8 hour work day. The claimant is able to perform tasks where there is only an occasional requirement for stooping and where she may alternate positions on an hourly basis.

-6- Id. at 18. This assessment is supported by substantial evidence. M s. M organ’s

complaint that there are no other assessments in the record, presumably against

which to compare the ALJ’s, ignores our standard of review, which is whether the

ALJ’s assessment is supported by substantial evidence, Howard v. Barnhart,

379 F.3d 945, 947 (10th Cir. 2004). M s. M organ’s arguments w ould require us to

reweigh the evidence and substitute our judgment for that of the Commissioner’s.

That we cannot do. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).

2. C redibility

Finally, M s. M organ argues that the ALJ erred in finding her “not fully

credible.” Aplt. App. at 18. She contends this determination skewed the RFC

assessment because the A LJ improperly discredited her subjective complaints.

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (quotation

omitted). “H owever, findings as to credibility should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (alteration and quotation

omitted). “So long as the ALJ sets forth the specific evidence he relies on in

evaluating the claimant’s credibility, the dictates of Kepler are satisfied.” Qualls

v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

-7- Here, the A LJ found that M s. M organ’s “allegation of being unable to work

at any exertional level whatsoever or in any modified work environment . . . are

[sic] not fully consistent with the objective medical evidence of record.” A plt.

App. at 18. As an example, the ALJ noted that “no treating or consultative

physician opined . . . that she was unable to work at any exertional level or in any

modified environment.” Id. Hence, the ALJ concluded that she was “not fully

credible.” Id. Although M s. M organ claims the ALJ failed to adequately

associate this finding with any evidence in the record, the ALJ is not required to

perform a formalistic evaluation of the evidence, Qualls, 206 F.3d at 1372. The

ALJ linked his conclusion that she was not fully credible to the fact that none of

her physicians believed she absolutely could not work. The fact that not one of

her doctors believed she was incapable of working indicates that her complaints

were inconsistent with the medical evidence. Accordingly, the ALJ was entitled

to rely on this fact to conclude that she was only partially credible. See Decker v.

Chater, 86 F.3d 953, 955 (10th Cir. 1996) (“in assessing [claimant’s] credibility,

the ALJ appropriately considered medical evidence that was inconsistent with

[claimant’s] claim of total disability”). M oreover, the ALJ’s finding that

M s. M organ was not fully credible w as directed only at her claim of complete

incapacitation. In all other respects, the A LJ accepted her subjective complaints,

including those of constant pain in her lumbar and right heel areas, intermittent

numbness in her left calf, and her ability to walk only one hundred feet at a time.

-8- Given the ALJ’s recitation of the evidence, we are satisfied that the correct legal

standard was applied. See H am ilton v. Sec’y of Health & H um an Servs., 961 F.2d

1495, 1500 (10th Cir. 1992) (finding no error where ALJ adequately considered

evidence supporting conclusion of non-disability).

III.

The judgment of the district court is AFFIRMED.

Entered for the Court

M ary Beck Briscoe Circuit Judge

-9-