Scull v. Apfel

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 26, 2000
• Docket: 99-7106
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 26 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

DANNY R. SCULL,

Plaintiff-Appellant,

v. No. 99-7106 (D.C. No. 98-CV-467-B) KENNETH S. APFEL, Commissioner (E.D. Okla.) of Social Security,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA , EBEL , and BRISCOE , 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Plaintiff Danny R. Scull appeals from a district court order affirming the

Commissioner’s decision to deny Supplemental Security Income benefits. We

review the Commissioner’s decision to determine whether it is supported by

substantial evidence and adheres to applicable legal standards. See Berna v.

Chater , 101 F.3d 631, 632 (10th Cir. 1996). “The scope of our review, however,

is limited to the issues the claimant properly preserves in the district court and

adequately presents on appeal.” Id. We reject the two arguments advanced by

plaintiff on appeal and, accordingly, affirm.

Plaintiff alleged disability due to a combination of physical impairments,

including pain in his back, knees, and right arm, and mental limitations, involving

depression and borderline intelligence. The administrative law judge determined

plaintiff had the residual functional capacity (RFC) for a full range of medium

work, albeit limited to simple, unskilled tasks. Based on a series of occupations

satisfying this description identified by a vocational expert, the ALJ concluded

plaintiff was not disabled at step five of the controlling test and denied benefits

accordingly.

Plaintiff challenges the ALJ’s decision on two grounds. First, he argues

that the RFC determination is undercut by the ALJ’s failure to order x-rays in

conjunction with a consultative medical examination obtained from Dr. Neil

Miller. Specifically, he contends x-rays were necessary to confirm Dr. Miller’s

-2- suggested diagnosis of arthritis. The particular focus of this objection undercuts

its materiality–disability determinations turn on the functional consequences,

not the causes, of a claimant’s condition, and “[t]he mere diagnosis of arthritis,

of course, says nothing about the severity of the condition,” Higgs v. Bowen ,

880 F.2d 860, 863 (6th Cir. 1988). We have on a number of occasions recognized

this dispositive gap between diagnostic evidence per se and the requisite showing

of consequent impairment. See, e.g. , Coleman v. Chater , 58 F.3d 577, 579

(10th Cir. 1995).

In any event, the ALJ did not deny benefits because of doubts about the

diagnosis of arthritis–indeed, the ALJ recognized “probable osteoarthritis” as an

impairment at step two, assessed that impairment against the listing criteria for

arthritis at step three, and determined plaintiff’s RFC for steps four and five by

reference to symptoms relating to the condition. Rather, the ALJ denied benefits

because the medical record, including Dr. Miller’s physical examination,

demonstrated that any associated functional limitations were insufficient to

preclude plaintiff from engaging in medium work. Under these circumstances,

we cannot say obtaining x-rays to confirm the diagnosis of arthritis would have

had “a material impact on the disability decision requiring further investigation.”

Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997) (establishing standard

for ALJ’s duty to develop record). Plaintiff’s reliance on Baker v. Bowen ,

-3- 886 F.2d 289, 291-92 (10th Cir. 1989), which held that an ALJ should have

obtained x-rays before denying the existence of arthritis on the ground that there

were no x-rays to support such a diagnosis , is misplaced.

Second, plaintiff insists the ALJ’s assessment of his mental functioning is

inconsistent with the conclusions of agency physicians who prepared a Psychiatric

Review Technique (PRT) and a Mental Residual Functional Capacity Assessment

(MRFC) form after reviewing the medical records. The ALJ’s PRT differed in

only two minor respects from the reviewers’ PRT: where the ALJ found slight

limitations on daily activities and no episodes of deterioration or decompensation,

the reviewers found moderate limitations and one or two such episodes. This

court has discounted similarly minor undiscussed discrepancies when, as here, the

ALJ expressly indicated that all evidence had been considered. Moreover, the

ALJ’s consideration of the bare conclusions on the reviewers’ PRT was clearly

informed by the explanatory detail added by their accompanying MRFC, which

indicated that for simple tasks plaintiff’s mental functioning was not significantly

limited in any respect. 1

Again, plaintiff’s reliance on a nominally contrary decision, Tiger v. Apfel ,

No. 97-5134, 1998 WL 166246 (10th Cir. April 7, 1998) (unpublished), turns out,

1 This conclusion is also corroborated by the consultative examination report prepared by Gerald Ball, Ph.D., who tested plaintiff’s cognitive capacity and confirmed his ability to handle simple instructions.

-4- on closer review, to be misplaced. In Tiger , this court held that an ALJ erred in

denying disability at step two for lack of a severe mental impairment without

discussing a psychological reviewer’s conclusion that the claimant was severely

impaired in her ability to handle detailed instructions. In Tiger , unlike here, the

reviewer’s assessment on the PRT was not qualified by the MRFC, and both flatly

contradicted the ALJ’s dispositive conclusion about the claimant’s impairment.

See id. **1-**2.

Finally, plaintiff also points out that the reviewers’ MRFC in this case

noted a moderate limitation on plaintiff’s ability to interact appropriately with the

general public, a vocationally relevant fact omitted, without explanation, from the

hypothetical posed by the ALJ to the vocational expert. However, most if not all

of the six distinct jobs identified by the vocational expert clearly do not require

interaction with the general public, as reflected by their respective descriptions in

the Dictionary of Occupation Titles. Indeed, plaintiff has never suggested

otherwise. Under the circumstances, the ALJ’s silence on the matter of public

interaction was simply immaterial to the outcome in the case.

-5- The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge

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