F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 6, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
PR ISC ILLA A . WA T SO N ,
Plaintiff-Appellant,
v. No. 06-5023 (D.C. No. 04-CV-740-FHM ) JO A NN E B. BA RN HA RT, (N.D. Okla.) Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.
Priscilla W atson appeals the district court’s order affirming the
Commissioner’s 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. W e 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. B ACKGROUND
At the time of the disability hearing, W atson 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. W atson
testified that she has lower back pain that radiates down into her legs, she has
pain “through [her] neck in to [her] shoulders,” Aplt. App., 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 W atson 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. W atson, 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. W atson also indicated
that raising her arms is painful and that she cannot bend, kneel or squat. As for
her daily activities, W atson 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 sandw ich. W atson also attends church at least
once a w eek and sometimes visits her sister.
-2- A vocational expert (V E) indicated that W atson 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 W atson’s RFC and included a restriction on arm raising, the VE testified
that W atson could return to work as a maid, a presser, or a fast food worker.
Finally, the VE testified that if W atson were fully credible regarding her
limitations, she would be unable to work.
The A LJ denied benefits at step four of the sequential evaluation process,
opining that W atson’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, Sw anson appealed.
D ISCUSSION
“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 (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 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
-3- from performing his past w ork. 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).
“W e 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.
W atson 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.” A plt. Br. at 19. But at the disability hearing, in
response to the ALJ’s inquiry, W atson’s former attorney declared that W atson
was not claiming to meet a listing. Aplt. App., 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 A LJ,
see Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) (stating that “an
-4- ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure
and present claimant’s case”). W e reject W atson’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
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 6, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
PR ISC ILLA A . WA T SO N ,
Plaintiff-Appellant,
v. No. 06-5023 (D.C. No. 04-CV-740-FHM ) JO A NN E B. BA RN HA RT, (N.D. Okla.) Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.
Priscilla W atson appeals the district court’s order affirming the
Commissioner’s 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. W e 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. 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. B ACKGROUND
At the time of the disability hearing, W atson 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. W atson
testified that she has lower back pain that radiates down into her legs, she has
pain “through [her] neck in to [her] shoulders,” Aplt. App., 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 W atson 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. W atson, 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. W atson also indicated
that raising her arms is painful and that she cannot bend, kneel or squat. As for
her daily activities, W atson 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 sandw ich. W atson also attends church at least
once a w eek and sometimes visits her sister.
-2- A vocational expert (V E) indicated that W atson 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 W atson’s RFC and included a restriction on arm raising, the VE testified
that W atson could return to work as a maid, a presser, or a fast food worker.
Finally, the VE testified that if W atson were fully credible regarding her
limitations, she would be unable to work.
The A LJ denied benefits at step four of the sequential evaluation process,
opining that W atson’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, Sw anson appealed.
D ISCUSSION
“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 (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 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
-3- from performing his past w ork. 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).
“W e 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.
W atson 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.” A plt. Br. at 19. But at the disability hearing, in
response to the ALJ’s inquiry, W atson’s former attorney declared that W atson
was not claiming to meet a listing. Aplt. App., 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 A LJ,
see Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) (stating that “an
-4- ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure
and present claimant’s case”). W e reject W atson’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.
W atson also argues that the ALJ’s credibility determination was flawed.
W hile 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 W atson’s impairments were not as severe as
alleged because she
sought little medical care and possesses a weak work record. . . . M edical records . . . do not give objective support to her complaints of back pain. The consultative examination by Angelo Dalessandro,
-5- D.O. . . . indicates M s. W atson had a full range of cervical spine motion. Range of motion of the lumbar spine was only moderately limited and she had normal heel and toe walking. Her dexterity and grip strength were adequate, according to Dr. Dalessandro who offered no lifting/carry restrictions . . . .
Aplt. App., Vol. II, at 19. W atson first claims that the ALJ ignored various parts
of the record regarding her shoulder impairment and back pain. An ALJ is not,
however, required to discuss every piece of evidence in the record. Threet v.
Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003). Rather, an ALJ must discuss the
evidence supporting his decision, the uncontroverted evidence he chooses not to
rely upon, and any significantly probative evidence he rejects. Hamlin v.
Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004). Here, the A LJ met that standard
by summarizing W atson’s treatment records and correctly noting that she was
given “several forms of conservative care for her back pain.” A plt. App., Vol. II,
at 18. And while conservative care does not necessarily foreclose a finding of
disability, see Threet, 353 F.3d at 1190, it is a relevant consideration, see Huston
v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
W atson summarily claims that the ALJ failed to fully develop the
administrative record by obtaining “evidence of treatment by a chiropractor, a
free clinic and at a Neighbor for Neighbor clinic.” Aplt. Br. at 27. Ordinarily,
the ALJ “has the duty to develop the record by obtaining pertinent, available
medical records which come to his attention during the course of the hearing.”
Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996). But W atson neither
-6- (1) suggests what the omitted treatment evidence might reveal; nor (2) identifies
anything in the record that would have reasonably notified the ALJ that such
evidence existed. Indeed, regarding our second observation, W atson’s former
attorney notified the ALJ during the hearing, when the ALJ asked whether the
record was complete, that there were recent emergency room visits not reflected
in the record. Aplt. App., Vol. II, at 330. But W atson’s former attorney
mentioned nothing about the evidence that W atson now complains was missing.
W e reject W atson’s argument.
W atson also claims that the ALJ misconstrued Dr. D alessandro’s findings.
Specifically, W atson cites a medical journal article which she reads as refuting
the ALJ’s finding of adequate grip strength. But a claimant’s interpretation of
such an article is not recognized as impairment evidence. See 20 C.F.R.
§ 404.1513 (disability insurance regulation designating acceptable medical
sources that can provide evidence of an impairment); id. § 416.913 (comparable
SSI regulation); SSR 96-5p, 1996 W L 374183, at *4 (requiring that opinions
about an individual’s capabilities be based on medical records and examinations).
M oreover, the ALJ’s description of W atson’s grip strength as adequate
corresponds with D r. Dalessandro’s opinion that Watson can “effectively grasp
tools.” Aplt. App., Vol. II, at 124.
W atson next attacks the ALJ’s credibility determination on the basis that he
“paid lip service to [her] medications,” Aplt. Br. at 30, and “did not do justice to
-7- . . . their side effects,” id. at 31. The ALJ correctly observed, however, that
W atson took “muscle relaxants . . . and narcotic pain medication,” Aplt. A pp.,
Vol. II, at 18. And W atson identifies only one reference in the entire medical
record to a medication’s side effect: M otrin “making [her] stomach hurt,” id. at
158. W ithout any evidence suggesting that this side effect had any bearing on her
limitations, the ALJ had no duty to discuss it. See Hamlin, 365 F.3d at 1217
(stating that an ALJ must discuss significantly probative evidence he rejects).
W atson next challenges the ALJ’s finding that her w ork record is weak.
W e may not reweigh the evidence that lead the ALJ to this finding. See Hackett,
395 F.3d at 1173. W e conclude only that (1) W atson’s lack of employment for a
large portion of the last fifteen years constitutes substantial evidence for the ALJ
to characterize her work record as weak; and (2) a lack of work history is one of
many factors that an ALJ may consider in assessing credibility, see SSR 96-7p,
1996 W L 374186, at *5; Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995);
Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
After examining the record as a w hole, we are persuaded that the A LJ’s
credibility findings are closely and affirmatively linked to substantial evidence.
The judgment of the district court is AFFIRMED.
Entered for the Court
John C. Porfilio Circuit Judge
-8-