Vigil v. Commissioner, SSA

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 11, 2018
• Docket: 17-1462
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MARCOS A. VIGIL,

Plaintiff - Appellant,

v. No. 17-1462 (D.C. No. 1:15-CV-02659-RM) COMMISSIONER, SSA, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, O’BRIEN, and CARSON, Circuit Judges. _________________________________

Marcos A. Vigil appeals a district court order affirming the Commissioner’s

denial of disability and supplemental security income benefits. Proceeding pro se, he

repeats—verbatim—the same arguments raised by his attorney in the district court,

claiming an administrative law judge (ALJ) erred at steps 3, 4, and 5 of the disability

evaluation process, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)

(explaining the process). For the reasons that follow, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

Mr. Vigil claimed he was disabled on January 1, 2006, by back problems and

schizophrenia. After an initial hearing, the ALJ denied benefits, but the district court

remanded for further administrative proceedings. On remand, the ALJ held a second

hearing and determined anew that Mr. Vigil was not disabled. The ALJ found that

Mr. Vigil was severely impaired by personality disorder, schizophrenia, and alcohol

abuse, but there was no evidence to “substantiate a finding of any severe impairment,

other than alcohol abuse.” R., Vol. 2 at 317.1 The ALJ concluded that Mr. Vigil did

not satisfy the criteria for any listed impairment, he could perform his past relevant

work as a prep cook and mail clerk, and he could transition to other jobs as a small

product assembler and floor wax technician. In reaching these conclusions, the ALJ

found that Mr. Vigil had the residual functional capacity (RFC) “to perform a full

range of work at all exertional levels,” except that his non-exertional limitations

required unskilled work that did not include dealing with the general public or more

than occasionally dealing with co-workers. Id. at 319. Mr. Vigil did not seek review

by the Appeals Council, and the district court affirmed.

II

“In reviewing the ALJ’s decision, we neither reweigh the evidence nor

substitute our judgment for that of the agency. Rather, we examine the record as a

1 Mr. Vigil does not contest this step-two finding, and any error would be harmless in any event, given that the ALJ unequivocally found at least one severe impairment. See Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). 2 whole to ascertain whether the ALJ’s decision . . . is supported by substantial

evidence and adheres to the correct legal standards.” Newbold v. Colvin, 718 F.3d

1257, 1262 (10th Cir. 2013) (citation and internal quotation marks omitted).

On appeal, Mr. Vigil contests only the ALJ’s evaluation of his non-exertional

impairments. Although his arguments were apparently crafted by his attorney in the

district court, compare R., Vol. 1 at 29-44 with Aplt. Br. at 7-25, they are unfocused

and poorly developed. “We will consider and discuss only those of [his] contentions

that have been adequately briefed for our review.” Keyes-Zachary v. Astrue,

695 F.3d 1156, 1161 (10th Cir. 2012). As we understand Mr. Vigil’s brief, he

contends the ALJ erred at step three by finding that he did not meet the criteria for a

listed impairment; at step four by formulating an RFC that did not account for all of

his impairments and his doctors’ opinions; and at step five by posing a hypothetical

question to the vocational expert (VE) that did not accurately reflect his impairments.

We evaluate these arguments in turn.

A. Step Three: Listings

“At step three, the [ALJ must determine] whether the impairment is equivalent

to one of a number of listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity.” Lax v. Astrue, 489 F.3d 1080,

1085 (10th Cir. 2007) (brackets and internal quotation marks omitted). “If the

impairment is listed and thus conclusively presumed to be disabling, the claimant is

entitled to benefits.” Id. (internal quotation marks omitted). But to be disabled under

3 a listed impairment, a claimant must present evidence demonstrating that he satisfies

all the criteria for the relevant listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

Mr. Vigil fails to demonstrate that he satisfies all the criteria of any listed

impairment. His only specific argument relates to the ALJ’s conclusion that he did

not satisfy listing 12.03, in particular, that listing’s paragraph C criteria.

Listing 12.03 concerns “Schizophrenic, Paranoid and Other Psychotic

Disorders: Characterized by the onset of psychotic features with deterioration from a

previous level of functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03. To

satisfy the paragraph C criteria, a claimant must show a:

C. Medically documented history of a chronic schizophrenic, paranoid, or other psychotic disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

Id.

Mr. Vigil correctly points out that the ALJ erred by summarily concluding,

without explanation, that he failed to satisfy these criteria, but he does not explain

how this error was anything but harmless. See Fischer-Ross v. Barnhart, 431 F.3d

4 729, 733-34 (10th Cir. 2005) (applying harmless error analysis “where, based on

material the ALJ did at least consider (just not properly), we could confidently say

that no reasonable administrative factfinder, following the correct analysis, could

have resolved the factual matter in any other way” (internal quotation marks

omitted)). He alludes to subparagraph 3, arguing that he “has a history of one or

more years of inability to function outside a highly supportive living arrangement[,]

[h]e isolates in an apartment, situated close to his parents, his meals are provided at

least in part by his mother[,] and he is monitored by his father’s nearly daily visits.”

Aplt. Br. at 13 (internal quotation marks omitted). While the record clearly confirms

that he suffers from schizophrenic conditions and alcoholism, there is substantial

evidence that he does not have a “[c]urrent history of 1 or more years’ inability to

function outside a highly supportive living arrangement, with an indication of

continued need for such an arrangement.” 20 C.F.R. Pt. 404, Subpt. P, App. 1

§ 12.03(C)(3). The ALJ cited evidence that Mr. Vigil lived alone, albeit close to his

parents, and could dress and bathe himself, do laundry, cook simple meals, and go to

the grocery store with his mother. The ALJ also cited evidence that although he did

not socialize with others, he spent time with his family and attended church services.

This evidence was consistent with the opinion of Dr. MaryAnn Wharry, an agency

physician, who determined that Mr. Vigil did not satisfy the paragraph C criteria.

Under these circumstances, we are confident that no reasonable factfinder would

have concluded otherwise.

5 B. Step Four: RFC and Medical Source Opinions

Mr. Vigil next contends that the ALJ erred at step four by assessing an RFC

that failed to account for all of his impairments and his doctors’ opinions. On this

score, he first contends the RFC is flawed because the ALJ failed to weigh the

opinion of Dr. Brett Valette, an examining physician who believed Mr. Vigil had

“schizoid personality disorder” and “chronic alcohol dependency.” R., Vol. 2 at 246.

These diagnoses are consistent with the RFC, however, and the ALJ favorably cited

Dr. Valette’s opinion in evaluating Mr. Vigil’s daily activities. Thus, any oversight

in failing to specify the weight given to Dr. Valette’s opinion was harmless.

See Keyes-Zachary, 695 F.3d at 1165 (holding that any error from ALJ’s failure to

specify the weight given to an examining physician’s opinion was harmless where the

opinion was not inconsistent with the limitations assessed in the RFC); see also

Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When the ALJ does not

need to reject or weigh evidence unfavorably in order to determine a claimant’s RFC,

the need for express analysis is weakened.”).

Mr. Vigil also suggests the ALJ ignored the opinion of Dr. Steven Stockdale, a

clinical psychologist who evaluated Mr. Vigil in December 2005. Dr. Stockdale

diagnosed Mr. Vigil with severe and chronic alcohol dependence, secondary to a

severe and recurrent depressive disorder with suicidal thoughts, schizoaffective

disorder, and mixed personality disorder with psychotic thinking and schizoid and

schizotypal personality characteristics. Dr. Stockdale concluded that Mr. Vigil was

“gravely disabled,” R., Vol. 2 at 211, and, after a brief period of counselling, had him

6 hospitalized for six days in 2006. Thereafter, Dr. Stockdale referred Mr. Vigil to

Dr. James Spadoni for treatment and did not see Mr. Vigil again until April 2012,

when he noted Mr. Vigil was living on his own and “only had 2 to 3 relapses into

alcohol in the past years and the relapses have lasted for 1 day,” id. at 276.

Dr. Stockdale added:

I continue to feel [Mr. Vigil] does not have the ability to maintain a job in the regular work force due to his psychiatric status. He continues to have chronic mental illness and does not have the skills, physical or cognitive energy or stamina, and adequate reason or judgment to work.

Id. at 277.

The ALJ gave very little weight to Dr. Stockdale’s opinion. The ALJ reasoned

that Dr. Stockdale did not assess any specific functional limitations, he did not have a

treatment relationship with Mr. Vigil, he did not appreciate the extent of Mr. Vigil’s

alcoholism, and he was unfamiliar with the standards and evidentiary requirements

applicable to disability claims.

On appeal, Mr. Vigil fails to advance any specific challenge to the ALJ’s

rationale for affording Dr. Stockdale’s opinions little weight. His opening brief

contains only sporadic references to Dr. Stockdale’s opinion and offers no basis upon

which we might conclude that the ALJ erred. See Aplt. Br. at 17-18. “An appellant’s

opening brief must identify ‘appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which appellant relies.’”

Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P.

28(a)(8)(a)). “Consistent with this requirement, we routinely have declined to

7 consider arguments that are not raised, or are inadequately presented, in an

appellant’s opening brief.” Id. These same rules govern Mr. Vigil’s brief, even

though we apply more lenient standards to pro se pleadings. See Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Because Mr. Vigil

fails to articulate any developed argument challenging the ALJ’s evaluation of

Dr. Stockdale’s opinion, he has waived appellate consideration of that aspect of the

ALJ’s decision. See Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014)

(“perfunctory complaints failing to frame and develop an issue are not sufficient to

invoke appellate review” (internal quotation marks omitted)).

One additional note: to the extent Mr. Vigil contends the RFC “fail[s] to

include [his] intolerance for human interaction and a need to isolate,” Aplt. Br. at 20,

this argument is refuted by the RFC itself, which limits him to unskilled work that

does not include dealing with the general public or more than occasionally dealing

with co-workers.

C. Step Five: Hypothetical Question

Finally, Mr. Vigil contends the ALJ erred at step five by posing an inaccurate

hypothetical question to the VE. He says the ALJ’s hypothetical should have

accounted for a multitude of different limitations, diagnoses, and symptoms,

including his tendency to isolate from others, his unusual thought processes, his

limited ability to function in high-stress environments, his moderate limitations in

maintaining concentration, persistence, and pace, his paranoia, and his symptoms of

psychosis or depression.

8 It is well established that a hypothetical question posed to a VE must reflect all

of the impairments borne out by the record. See Decker v. Chater, 86 F.3d 953, 955

(10th Cir. 1996). The ALJ’s hypothetical here restricted Mr. Vigil from performing

“complex tasks, defined as SVP 2 or less,” and allowed him to perform only

unskilled work in which he completely refrained from dealing with the general public

and only occasionally dealt with co-workers. R., Vol. 2 at 341. These restrictions

reflected the nonexertional limitations found by the ALJ, and Mr. Vigil does not

argue otherwise or explain why the ALJ was obliged to specifically include each

individual symptom and diagnosis in the hypothetical. Consequently, he fails to

show any reversible error.

III

The judgment of the district court is affirmed.

Entered for the Court

Jerome A. Holmes Circuit Judge