Watson v. Barnhart

194 F. App'x 526
Court of Appeals for the Tenth Circuit·Decided September 6, 2006·No. No. 06-5023·Published·Cited by 5 cases

Opinion

ORDER AND JUDGMENT*

JOHN C. PORFILIO, Circuit Judge.

Priscilla Watson appeals the district court’s order affirming the Commissioner’s [528] decision to withhold disability benefits. She argues that the ALJ failed to properly assess (1) whether her medical conditions satisfied a listing; and (2) her credibility. We affirm.

Background

At the time of the disability hearing, Watson was fifty-two years old and lived with her daughter. She has been diagnosed with hypertension, osteoarthritis, sciatica, obesity, and tendinitis in her left shoulder. Watson testified that she has lower back pain that radiates down into her legs, she has pain “through [her] neck in to [her] shoulders,” ApltApp., Vol. II, at 342, she has headaches, she has depression, she has pain and swelling in her feet, she has pain and stiffness in her shoulders, her legs “tire real easily,” id. at 336, and her hands “cramp up,” id. at 341.

Regarding her limitations, a residual functional capacity (RFC) assessment indicated that Watson could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours, sit for about six hours, and occasionally stoop. Watson, however, testified that she can lift only ten pounds, stand for only fifteen or twenty minutes at a time, and walk no more than the distance of a “short block.” Id. at 347. Watson also indicated that raising her arms is painful and that she cannot bend, kneel or squat. As for her daily activities, Watson testified that she reads, watches television, and remains in “bed ... practically all day,” id. at 351, getting up only to brush her teeth and get a bowl of cereal or a sandwich. Watson also attends church at least once a week and sometimes visits her sister.

A vocational expert (VE) indicated that Watson has worked as a maid, a presser in a dry cleaning business, a janitor, a home health aide, and a fast food worker. Id. at 362. In response to the ALJ’s hypothetical, which took into account Watson’s RFC and included a restriction on arm raising, the VE testified that Watson could return to work as a maid, a presser, or a fast food worker. Finally, the VE testified that if Watson were fully credible regarding her limitations, she would be unable to work.

The ALJ denied benefits at step four of the sequential evaluation process, opining that Watson’s “impairments are [not] as severe as she alleges,” id. at 19, and that she could work as a maid, a presser, or a fast food worker. After the Appeals Council denied review, Swanson filed a complaint for judicial review in federal district court. Unsuccessful, Swanson appealed.

Discussion

“The Social Security Act authorizes payment of disability insurance benefits and Supplemental Security Income [SSI] to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). To determine whether a claimant is disabled under the Act, an ALJ must follow a five-step sequential evaluation process. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

At step one, the claimant must show that he is not presently engaged in substantial gainful activity; at step two that he has a medically severe impairment or [529] combination of impairments; at step three that the impairment is equivalent to a listed impairment; and, at step four, that the impairment or combination of impairments prevents him from performing his past work. If the claimant successfully meets his burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient residual functional capacity ... to perform work in the national economy, given his age, education, and work experience.

Id. (citation and quotations omitted).

“We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.2003). “Substantial evidence is adequate relevant evidence that a reasonable mind might accept to support a conclusion.” Kepler v. Chater, 68 F.3d 387, 388-89 (10th Cir.1995).

I.

Watson argues that the ALJ erred at step three. Specifically, she notes that the ALJ failed to “name a single listed impairment that he considered and found that [she] did not meet or equal.” Aplt. Br. at 19. But at the disability hearing, in response to the ALJ’s inquiry, Watson’s former attorney declared that Watson was not claiming to meet a listing. ApltApp., Vol. II, at 331. Although it is generally improper for an ALJ to summarily conclude, as he did here, that a claimant’s impairments do not meet or equal any listed impairment, Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.1996), we discern no error where the claimant’s counsel unambiguously concedes the step three issue before the ALJ, see Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) (stating that “an ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s case”). We reject Watson’s assertion that accepting her former counsel’s step-three concession amounts to some sort of “post hoc argument[ ] to salvage the ALJ’s decision.” Aplt. Br. at 23. There is nothing impermissibly post hoc about recognizing that a claimant has invited the deficiency of which she complains. Cf. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (stating that post hoc attempts to supply possible reasons for an ALJ’s decision are improper because they require courts to “overstep [their] institutional role and usurp essential functions committed in the first instance to the administrative process” (quotation omitted)).

II.

Watson also argues that the ALJ’s credibility determination was flawed. While a claimant’s credibility is generally an issue reserved to the ALJ, the issue is reviewable to ensure that the underlying factual findings are “closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005) (quotation omitted).

The ALJ concluded that Watson’s impairments were not as severe as alleged because she

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Watson v. Barnhart, 194 F. App'x 526 (10th Cir. 2006).

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