Rudde v. Astrue

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 6, 2007
• Docket: 07-5033
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES CO URT O F APPEALS November 6, 2007 Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court

CH AR LENE RU DD E,

Plaintiff-Appellant,

v. No. 07-5033 (D.C. No. 05-CV-632-FHM ) M ICH AEL J. ASTRU E, (N.D. Okla.) Commissioner, Social Security Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.

In this Social Security disability and supplemental security income case,

Charlene Rudde seeks review of the Commissioner’s decision that she became

disabled as of M ay 20, 2000, rather than her alleged onset date of February 14,

1999. W e have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and

we AFFIRM .

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I.

M s. Rudde was diagnosed with multiple sclerosis in 1992. On February 14,

1999, she ceased working at her job as a cashier at a drugstore, citing increased

problem s w ith her legs. She applied for benefits, alleging a disability onset date

of February 14, 1999. Beginning in December 1999, she returned to the cashier

job part-time, under accommodations, but in early to mid-2000, her physical

condition deteriorated. Her physician put her on medical leave starting on

July 20, 2000, and she resigned because her job was in jeopardy due to her

increasing absences and physical difficulties.

The agency initially determined that she performed substantial gainful

activity from December 1999 through July 19, 2000, so that she could not be

considered disabled before July 20, 2000. The district court held that the

part-time drugstore job did not constitute substantial gainful activity and

remanded for further proceedings. On remand, the administrative law judge

(A LJ) determined that M s. Rudde became disabled as of M ay 20, 2000, but until

that date she retained sufficient residual functional capacity (RFC) to perform

sedentary jobs in the national economy. The ALJ’s decision became the final

agency decision under 20 C.F.R. §§ 404.984 and 416.1484, and the district court

affirmed the decision.

-2- II.

This appeal concerns only the period between February 14, 1999, and

M ay 19, 2000. M s. Rudde presents four issues, concerning (1) the assessment of

her RFC; (2) the determination, at step five of the five-step evaluation process,

that she could perform other jobs available in the national economy; (3) the

evaluation of her credibility; and (4) the calculation of her onset date.

“The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence, and whether

[he] applied the correct legal standards.” Grogan v. Barnhart, 399 F.3d 1257,

1261 (10th Cir. 2005). “Substantial evidence is more than a mere scintilla and is

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. “[W]e meticulously examine the record as a whole, including

anything that may undercut or detract from the ALJ’s findings in order to

determine if the substantiality test has been met,” but “we do not reweigh the

evidence or try the issues de novo.” Id. at 1262.

RFC Determination

M s. Rudde first argues that the ALJ did not cite any evidence to support his

RFC determination that until M ay 20, 2000, she could lift up to ten pounds, she

could walk and stand for thirty minutes at a time for a total of two hours, and she

could sit for a total of six hours in an eight-hour workday. She also contends that

the RFC failed to include any limitations resulting from her fatigue and her

-3- reduced ability to use her hands to grasp objects and perform fine manipulation,

and the A LJ failed to address the evidence supporting such limitations.

The record contains substantial evidence to support the ALJ’s RFC

assessment. See Aplt. App., Vol. II at at 357-58 (Dr. Dalessandro’s

September 24, 1999, report of exam noting a “slight right limp,” stating that

“[t]he patient can heel-and-toe walk,” and finding despite “some weakness of the

right leg” that she had “a normal gait to speed, stability, and safety”); id. at 364

(Septem ber 30, 1999, non-examining physician’s R FC assessment that she could

occasionally lift up to twenty pounds and frequently lift ten pounds, could stand

and/or w alk about six hours in an eight-hour workday, and could sit about six

hours in an eight-hour workday); id., Vol. III at 372 (November 18, 1999,

non-examining physician’s R FC assessment that she could occasionally lift up to

twenty pounds and frequently lift ten pounds, could stand and/or walk about six

hours in an eight-hour workday, and could sit about six hours in an eight-hour

workday); id. at 386 (August 21, 2000, treating physician’s medical assessment

stating that she could sit for a total of six hours, walk a total of one hour and

stand a total of forty-five minutes in an eight-hour day, and she could

occasionally lift and carry up to ten pounds); id. at 462 (M s. Rudde’s October 30,

2000, testimony that before she went on medical leave she could stand for a half-

hour at a time and she could w alk for short distances).

-4- As for M s. Rudde’s fatigue, the RFC does include a reference to fatigue.

See id. at 487 (“Additionally, the claimant is afflicted with symptoms from

multiple sclerosis that include mild to moderate chronic pain and fatigue that are

of such sufficient severity so as to be noticeable to her at all times, but

nevertheless would not prevent her from being able to remain attentive and

responsive in a work-setting and perform work assignments within the above

limitations.”). M s. Rudde’s argument rests on the premise that the ALJ was

required to believe her testimony that she dozed off every time she sat for more

than thirty minutes at a time. Ultimately, however, it is up to the ALJ to weigh

the evidence; this court will not reweigh it. Rutledge v. Apfel, 230 F.3d 1172,

1174 (10th Cir. 2000); Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).

Similarly, regarding M s. Rudde’s hand impairments, she cites medical

notations about numbness in her hands and arms, Dr. Dalessandro’s

September 1999 measurement of reduced grip strength in her right hand, and her

testimony and that of her daughter that she experienced some numbness in her

hands and fingers, experienced difficulty in opening jars and making change, and

that she sometimes dropped things. But this evidence does not necessarily mean

that her limitations w ere so severe that the ALJ w as required to include them in

her RFC. Again, it is the ALJ’s task to weigh the evidence. W hile there is

evidence favoring each side, the medical record does provide substantial evidence

for the ALJ’s determination that M s. Rudde’s hand and arm problems were not

-5- severe enough to affect her RFC during the period at issue. See Aplt. App., Vol.

II. at 147, 167 (M ay 27, 1999, and June 28, 1999, disability reports by M s. Rudde

indicating her problems working came from fatigue and “trouble with [her] legs,”

but not mentioning trouble w ith her hands); id. at 358 (Dr. Dalessandro’s

September 24, 1999, consultative examination report stating “[d]exterity of gross

and fine manipulation is present”); id. at 365-66 (September 30, 1999,

non-examining physician’s RFC assessment noting that she can grasp tools and

manipulate small objects and assessing no manipulative limitations); id., Vol. III

at 374 (November 18, 1999, non-examining physician’s RFC assessment

reflecting no manipulative limitations); id. at 387 (August 21, 2000, treating

physician’s statement that she could do simple grasping and pushing/pulling of

controls with right hand, and simple grasping, pushing/pulling of controls, and

fine manipulation with left hand); id. at 461 (M s. Rudde’s October 30, 2000,

testimony that her problems with her hands had been “going off and on since –

well, since about M ay, I’ve noticed that’s w orse”); id. at 464 (M s. Rudde’s

daughter’s testimony characterizing degree of difficulty with hands in February

1999 as “a little bit”).

The record contains substantial evidence to support the A LJ’s

determination that M s. Rudde retained the ability to perform other sedentary work

up until M ay 20, 2000, when her condition became disabling. W e recognize

M s. Rudde’s contention that multiple sclerosis is an incurable, progressive disease

-6- subject to periods of remission and exacerbation. See Wilcox v. Sullivan,

917 F.2d 272, 274 (6th Cir. 1990); Estes v. R.R. Ret. Bd., 776 F.2d 1436, 1437

(9th Cir. 1985); Parish v. Califano, 642 F.2d 188, 193 (6th Cir. 1981). But the

onset date is “the first day an individual is disabled as defined in the [Social

Security] Act and the regulations.” Soc. Sec. Rul. 83-20, 1983 W L 31249, at *1

(1983). Even if her condition went into remission at some point during 1999, to

obtain benefits dating back to February 14, 1999, M s. Rudde had to be disabled as

of February 14, 1999, and substantial evidence in the record supports the ALJ’s

determination that M s. Rudde was not disabled as of that date.

Step-Five Determination

M s. Rudde also challenges the ALJ’s step-five determination that she could

perform the jobs of electronic goods assembler, optical goods assembler, and

security system monitor. She argues that her problems w ith her hands rendered it

impossible to do the jobs of electronic goods assembler and optical goods

assembler, and her fatigue and tendency to doze off rendered her unable to do any

of the jobs. Again, these arguments depend on accepting M s. Rudde’s evaluation

of her impairments, which the ALJ did not do. For the reasons discussed above,

the ALJ’s determination regarding the impairments is supported by substantial

evidence. The ALJ was not required to allow for impairments he did not accept

as true. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990).

-7- Credibility Evaluation

M s. Rudde also challenges the ALJ’s evaluation of her credibility. The

ALJ found M s. Rudde partially credible. He noted that for the period at issue, the

clinical findings did not support her assertions of disability, and he stated:

The medical record reflects the claimant had some difficulties in the late 1990’s and the early months of 2000, including problems w ith fatigue. The claimant, however, was working part-time, was not using a cane, and was able to perform at least some household chores with the help of her daughter during this period. . . . Based upon these circumstances, the claimant is found only partially credible in this case. Although having difficulty throughout the pertinent period in this case, her assertions of disability prior to M ay 2000 are not supported by the overall record.

Aplt. A pp., Vol. III at 486.

The A LJ is “the individual optimally positioned to observe and assess

witness credibility.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799,

801 (10th Cir. 1991). “Credibility determinations are peculiarly the province of

the finder of fact, and we will not upset such determinations when supported by

substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(quotation omitted). The A LJ must cite specific evidence relevant to the factors

used in evaluating a claimant’s subjective complaints, and explain why if he

concludes those complaints are not credible. See id.; see also Soc. Sec. Rul.

96-7p, 1996 W L 374186, at *4 (1996) (stating that credibility determinations

cannot be based on “intangible or intuitive” reasons, but “must be grounded in the

evidence and articulated in the determination or decision”). This process,

-8- however, “does not require a formalistic factor-by-factor recitation of the

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

The ALJ cited several reasons for discounting M s. Rudde’s allegations of

total disability during the period at issue. Primary among those reasons were the

medical and clinical findings that were inconsistent with M s. Rudde’s allegations.

Such inconsistencies are an appropriate basis for evaluating credibility. See

Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996); Kepler, 68 F.3d at 391

(listing factors an ALJ might consider). The ALJ also appropriately considered

M s. Rudde’s attempts to seek relief and her daily activities. See Kepler, 68 F.3d

at 391; Ham ilton v. Sec’y of Health & H um an Servs., 961 F.2d 1495, 1499

(10th Cir. 1992). Because the ALJ followed Kepler and the credibility evaluation

was supported by substantial evidence, it is not our prerogative to disturb it.

Onset Date

Finally, M s. Rudde argues that the ALJ failed to properly evaluate her

onset date. She contends that the record does not support the ALJ’s determination

that her condition worsened as of M ay 20, 2000, and that the ALJ “made no

evaluation of whether the evidence supported an earlier onset date or whether an

earlier date could be inferred from the medical evidence.” Aplt. Br. at 35. She

also contends that the ALJ should have sought a medical opinion in order to infer

an onset date. See Soc. Sec. Rul. 83-20, 1983 W L 31249, at *3.

-9- As noted above, the ALJ discussed the medical evidence in assessing

M s. Rudde’s RFC. The record contains substantial evidence that M s. Rudde’s

condition declined in or about M ay 2000. She began using a cane in that month.

Aplt. App., Vol. III. at 637. On August 22, 2000, her supervisor wrote that “[s]he

has always had difficulty walking and standing for a long period, but in the last

two months her condition has worsened. It has caused her to miss several days of

work per w eek routinely and when working has requested use of a chair to sit

down when not busy.” Id., Vol. II at 187; see also id., Vol. III at 634

(M s. Rudde’s testimony confirming that her attendance problems occurred in the

last two months of her employment). In addition, M s. Rudde testified that she

began experiencing more difficulties with her hands in M ay. Id., Vol. III at 461.

As for alleged error in failing to call a medical advisor to infer the onset

date, “a medical advisor need be called only if the medical evidence of onset is

ambiguous.” Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995). “[T]he

established onset date must be fixed based on the facts and can never be

inconsistent with the medical evidence of record.” Soc. Sec. Rul. 83-20, 1983

W L 31249, at *3. Concededly, M s. Rudde was diagnosed with multiple sclerosis

in 1992, and her medical records between 1992 and 1997 document intermittent

episodes of leg pain and weakness, spasticity of the right leg, tingling and

weakness in her arms or hands, and fatigue. But her medical records from early

1999 do not mention such issues or otherwise support her complaints of totally

-10- disabling impairments as of the alleged onset date, see Aplt. App., Vol. II at

340-41, 348, and the September 24, 1999, consultative exam reports did not

support a finding of total disability, see id. at 356-62; see also id. at 363-70

(September 30, 1999, non-examining physician’s RFC assessment). Thus,

inferring an onset date earlier than the M ay 20, 2000, date assessed by the ALJ

would be inconsistent with the medical evidence of record. The ALJ’s failure to

call a medical advisor was not error.

III.

W e recognize that multiple sclerosis is a devastating disease, and persons

living with it face numerous difficulties. If this matter had been before us in the

first instance, we might have reached a different conclusion. But the matter is not

before us in the first instance, and we must apply our established deferential

standard of review of the agency’s determinations. The judgment of the district

court is A FFIR ME D.

Entered for the Court

Stephen H. Anderson Circuit Judge

-11-