Wyatt v. Barnhart

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 25, 2006
• Docket: 05-6375
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 25, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

BILLIE C. W YA TT,

Plaintiff-Appellant,

v. No. 05-6375 (D.C. No. 05-CV-80-W ) JO A NN E B. BA RN HA RT, (W .D. Okla.) Commissioner of Social Security,

Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.

Plaintiff Billie C. W yatt appeals from an order of the district court

affirming the Social Security Commissioner’s denial of her application for

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation. disability benefits. Exercising our jurisdiction under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, we affirm.

BACKGROUND

This appeal concerns W yatt’s application for disability benefits filed on

June 17, 2002. 1 She alleges that she has been disabled since M arch 31, 2001, due

to depression; hands that sw ell, hurt, and go numb; arthritis; back pain; chronic

diarrhea caused by irritable bowel syndrome; neck pain; heart problems; and

insomnia. Following the initial denial of her application, a hearing was held on

June 10, 2003, before ALJ Lacy. Less than a month later, however, ALJ Lacy

died without rendering a decision on W yatt’s application. Therefore, her case

was transferred to ALJ Parrish.

ALJ Parrish determined that a supplemental hearing was not necessary and

rendered a decision based on the documentary evidence and a tape recording of

W yatt’s hearing before ALJ Lacy. He denied W yatt’s application at step four of

the sequential evaluation process, see 20 C.F.R. § 404.1520, because he

concluded that although W yatt suffered from severe impairments (mitral

1 Plaintiff’s first application for disability benefits, filed in January 2001, was denied by an Administrative Law Judge (ALJ) on M ay 6, 2002, without further appeal. The ALJ who adjudicated the current application concluded that any claim of alleged disability existing before M ay 6, 2002, was barred by res judicata. As W yatt does not challenge that ruling on appeal, we will confine our review to the ALJ’s decision as it relates to W yatt’s alleged disabled status since M ay 6, 2002.

-2- regurgitation, depression, and back problems), she retained the residual functional

capacity (RFC) to perform light work. Since several of her previous jobs,

including medical lab courier, line loader, and fast food worker, required only

light work, the A LJ concluded that W yatt could perform her past relevant work

and was, therefore, not disabled within the meaning of the Social Security Act.

O n D ecember 3, 2004, the A ppeals Council denied W yatt’s request for review,

thereby making the A LJ’s decision the final decision of the Commissioner.

W yatt then filed an action in the district court seeking reversal of the

Commissioner’s decision. The matter w as referred to a magistrate judge for a

report and recommendation pursuant to 28 U.S.C. § 636(b), and on October 11,

2005, the magistrate judge issued a report recommending that the C ommissioner’s

decision be upheld. W yatt filed a timely objection to the magistrate judge’s

report. Over her objection, however, the district court adopted the magistrate

judge’s report on October 21, 2005, and issued an order affirming the

Commissioner’s decision. This appeal followed.

ANALYSIS

I. Standard of Review

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

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

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

1261 (10th Cir. 2005). “Substantial evidence . . . is such relevant evidence as a

-3- reasonable mind might accept as adequate to support a conclusion.” Id. Our

review entails a meticulous examination of the record to ensure that the

substantiality test has been met, but “we may neither reweigh the evidence nor

substitute our judgment for that of the agency.” White v. Barnhart, 287 F.3d 903,

905 (10th Cir. 2002) (quotation omitted).

II. W aiver

First, we address the Commissioner’s claim that several of W yatt’s

appellate arguments have been waived. W yatt raises several challenges to the

ALJ’s decision. First, she argues that the ALJ’s credibility assessment is entitled

to no deference because he failed to hold a supplemental hearing and therefore

missed the opportunity to observe her demeanor during her testimony. In

addition, she claims that the ALJ failed to provide a review able analysis of his

credibility determination. Next, she challenges the bases for the ALJ’s RFC

assessment. She claims that the ALJ failed to include all of her physical

limitations in his assessment, in particular her chronic back pain, and that he

erred by failing to address an agency expert’s opinion concerning her

psychological limitations. Finally, she argues that the ALJ did not properly

weigh the opinion of her primary care physician, Dr. Fanning.

W e agree with the Commissioner, however, that only two of these points

have been preserved for our review. Although W yatt made each of the above

arguments in her brief to the district court, she failed to raise all but two of them

-4- in her objection to the magistrate judge’s report and recommendation. In her

objection, she specifically raised the following two issues: (1) the magistrate

judge failed to adequately address her argument based on the ALJ’s failure to

hold a supplemental hearing; and (2) the magistrate judge did not adequately

consider her argument that the ALJ failed to include all of her physical limitations

in his RFC assessment. See Aplt. App. at 312. She attempted to preserve the

remainder of her arguments in a catchall statement, “adopt[ing] and realleg[ing]

all assertions as contained in her brief filed [] in support of reversing and

remanding the administrative law judge’s decision.” Id. at 312-13. She

concluded her objection by stating that the ALJ “failed to follow the correct legal

standard,” and that his decision was “not supported by substantial evidence.” Id.

at 313. This general objection, however, was not sufficient to preserve her more

specific challenges for appellate review.

W e have held that “a party’s objections to the magistrate judge’s report and

recommendation must be both timely and specific to preserve an issue for

. . . appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057,

1060 (10th Cir. 1996) (emphasis added). Thus, in Soliz v. Chater, 82 F.3d 373,

375-76 (10th Cir. 1996), we concluded that a plaintiff challenging the denial of

her social security application waived appellate review of specific issues by

objecting to the magistrate judge’s report with only a general objection that

substantial evidence did not support the agency’s decision. The same is true here.

-5- W yatt’s general objection that the ALJ’s decision was not supported by

substantial evidence and that he failed to follow the correct legal standard was not

“sufficiently specific to focus the district court’s attention on the factual and legal

issues that are truly in dispute.” One Parcel of Real Prop., 73 F.3d at 1060.

Therefore, we conclude that with the exception of the two issues that W yatt

specifically raised in her objection to the magistrate judge’s report, the arguments

raised on appeal before this court have been waived, and we will not address them

further. Soliz, 82 F.3d at 376.

III. Supplemental Hearing

One of the issues that W yatt did preserve for appellate review concerns the

ALJ’s decision not to hold a supplemental hearing and the effect of that decision

on his credibility assessment. The ALJ found that although W yatt suffered from

impairments reasonably expected to produce the types of symptoms she alleged,

“her complaints suggest[ed] a greater severity of impairment than [was] shown by

the objective medical evidence.” Aplt. App. at 27. W yatt relies on Williams v.

Bowen, 844 F.2d 748, 755 (10th Cir. 1988), to argue that since the ALJ was not

present at the hearing to observe her demeanor, his credibility assessment

deserves no deferential treatment. W e disagree.

W illiam s does not stand for the proposition that an ALJ’s observation of the

claimant’s demeanor is of paramount importance in determining credibility.

Certainly, as we stated in that case, “[t]he opportunity to observe the demeanor of

-6- a witness . . . is invaluable, and should not be discarded lightly.” Id. at 755

(quoting Beavers v. Sec’y of Health, Educ. and W elfare, 577 F.2d 383, 387

(6th Cir. 1978)). W e also held, however, that under certain circumstances the

ALJ’s credibility assessment can be set aside notwithstanding his presence at the

hearing. See id. at 754 (stating that the A ppeals Council may reject the A LJ’s

credibility assessment if it fully articulates its reasons for doing so).

Furthermore, Beavers, the case upon which we relied, makes clear that it is the

decision of the Commissioner that is entitled to deference, not the decision of the

individual ALJ who presided over the hearing. 577 F.2d at 387 (holding that the

ALJ’s determinations based on demeanor are not conclusive). W e therefore hold

that ALJ Parrish’s absence from the hearing was not, by itself, sufficient to render

his credibility assessment unworthy of deferential treatment.

On the other hand, W yatt is correct to urge closer scrutiny of the A LJ’s

credibility assessment since he did not have the benefit of personally observing

her testimony. C f. William s, 844 F.2d at 754 (holding that we review “with

heightened scrutiny” the Commissioner’s reasons for rejecting an ALJ’s

credibility findings). In this case, such close scrutiny reveals that the A LJ’s

assessment of W yatt’s credibility was based on inconsistencies between her

testimony and the documentary evidence and not on her demeanor at the hearing.

The ALJ noted that although Dr. Casper’s treatment notes reported

significant improvement following W yatt’s back surgery on April 17, 2002, W yatt

-7- told the consulting physician and testified at the hearing that she experienced

little to no improvement after her surgery. As the ALJ also noted, her testimony

that she suffers from unabated back and leg pain conflicted with treatment notes

from even before her surgery. On February 11, 2002, for example, Dr. Fanning

observed only “mild diffuse tenderness over the left lower back flank area. Only

mild muscle spasm,” and negative straight leg raises. Aplt. A pp. at 163.

Dr. Casper’s treatment notes from February 26, 2002, likewise revealed “negative

straight leg raise bilaterally. . . . good muscle strength and good reflexes.” Id. at

209. Finally, the ALJ found W yatt’s complaints of disabling back pain dubious

given that she never returned to her back surgeon for follow-up even after the

pain allegedly resurfaced. M oreover, the ALJ found troubling certain internal

inconsistencies in W yatt’s testimony concerning her daily activities and general

mobility. In short, the ALJ articulated specific reasons for his credibility

findings, and our independent review of the record reveals that his findings are

supported by substantial evidence. His credibility assessment is therefore entitled

to particular deference and will not be disturbed on appeal. See White, 287 F.3d

at 910.

IV. The ALJ’s RFC Determination

The other issue that Wyatt preserved for our review concerns the A LJ’s

alleged failure to consider her physical limitations due to her back pain in

determining her RFC. The RFC describes the range of work activities that a

-8- social security claimant can perform despite her impairments. See 20 C.F.R.

§ 404.1545(a)(1). In determining the claimant’s RFC the ALJ must consider any

medical opinions about what the claimant can still do as w ell as the claimant’s

own testimony concerning her limitations, including limitations resulting from

pain. See id. § 404.1545(a)(3). Here, the ALJ found that W yatt retained the

residual functional capacity to perform the exertional demands of light work, or

work that requires maximum lifting of twenty pounds and frequent lifting of up to

ten pounds. W yatt contends that the medical records from her treating physician

and the agency’s consulting physician corroborate her testimony of disabling pain

and reveal greater limitations than those reflected in the RFC.

For the reasons discussed above, we have no basis to second-guess the

ALJ’s skepticism of W yatt’s testimony concerning her alleged unabated back

pain. M oreover, our own review of the record reveals that the ALJ’s RFC

determination was supported by the objective medical evidence. W yatt submitted

medical records from both Dr. Fanning and Dr. Casper reflecting her repeated

complaints of back pain. She concedes, however, that none of the treatment

records express an opinion concerning her physical limitations. 2

2 W e note that Dr. Casper’s treatment notes, dated April 30, 2002, approximately two weeks after W yatt’s surgery, reveal that he was optimistic about her ability to return to “some form of work” after another two weeks. Aplt. App. at 203.

-9- A consulting physician who examined W yatt on August 28, 2002, did

report that W yatt walked with a slight limp, had positive straight leg raises and

weak heel and toe walking on the left side. He also noted that W yatt experienced

“great difficulty getting from a sitting to a lying position and extreme difficulty

getting from lying to a sitting position and required [] help with noted lower back

pain.” Aplt. App. at 212. As the ALJ noted, however, this report is not supported

by any other post-operative medical record, and is, in fact, contradicted by

W yatt’s previous statements to Dr. Casper. 3

Given the narrow scope of our review, we are compelled to conclude, as

was the district court, that substantial evidence supported the ALJ’s RFC

determination. White, 287 F.3d at 908. W e also agree with the district court that

the ALJ employed the correct legal standards in reaching his conclusions. The

district court’s judgment is therefore AFFIRMED.

Entered for the Court

W ade Brorby Circuit Judge

3 The record reveals that W yatt reported significant improvement to Dr. Casper only a month after her surgery, telling him that she was experiencing only mild pain after w alking a mile and a half a day. See Aplt. App. at 202.

-10-