Branum v. Barnhart

• Decision Date: 05 August 2004
• Docket Number: No. 03-7105.,03-7105.
• Parties: Christel BRANUM, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1268

385 F.3d 1268

Christel BRANUM, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 03-7105.

United States Court of Appeals, Tenth Circuit.

August 5, 2004.

Ordered Published September 27, 2004.

Appeal from the United States District Court for the Eastern District of Oklahoma, Kimberly E. West, J Submitted on the briefs: Davis Duty of Duty & Harp, Forth Smith, AR, for Plaintiff-Appellant.

Sheldon J. Sperling, United States Attorney, Tina M. Waddell, Chief Counsel, Region VI, Michael McGaughran, Deputy Chief Regional Counsel, Linda H. Green, Assistant Regional Counsel, Office of the General Counsel, U.S. Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before HARTZ, McKAY, and PORFILIO, Circuit Judges.

PORFILIO, Circuit Judge.

Appellee's motion to publish the order and judgment of August 5, 2004, is granted. A copy of the published opinion is attached.

Plaintiff-appellant Christel Branum appeals from an order of the district court affirming the Social Security Administration's decision denying her application for Supplemental Security Income (SSI) payments. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We affirm.^*

Plaintiff claims she has been unable to work since January 1998 as a result of back pain, obesity, and depression. After her application for SSI payments was denied initially and on reconsideration, a de novo hearing was held before an administrative law judge (ALJ), and plaintiff was represented by counsel at the hearing. In a decision dated September 24, 2002, the ALJ denied plaintiff's application for SSI payments, concluding that plaintiff is not disabled because: (1) she does not suffer from a severe mental impairment; (2) while her back pain and obesity are severe physical impairments, she is capable of performing sedentary work that requires only occasional walking up ramps and stairs and only occasional stooping, kneeling, and crouching, and which does not require climbing ladders, ropes, or scaffolds or balancing or crawling; and (3) based on the testimony of the vocational expert, she has the residual functional capacity (RFC) to perform jobs that exist in significant numbers in the national economy.

In January 2003, the Appeals Council denied plaintiff's request for review of the ALJ's decision. Plaintiff then filed a complaint in the district court. After the parties consented to having a magistrate judge decide the case, a magistrate judge entered an order affirming the ALJ's decision denying plaintiff's application for SSI payments. This appeal followed.

Because the Appeals Council denied review, the ALJ's decision is the Commissioner's final decision for purposes of this appeal. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). In reviewing the ALJ's decision, we "neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). Instead, we review the ALJ's decision only to determine whether the correct legal standards were applied and whether the ALJ's factual findings are supported by substantial evidence in the record. Doyal, 331 F.3d at 760. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988).

In this appeal, plaintiff claims the ALJ's decision denying her application for SSI payments is not supported by substantial evidence in the record because: (1) the ALJ failed to develop a record containing all of her medical records; (2) the ALJ erroneously determined that her mental impairment is not severe and failed to develop an adequate record concerning her mental impairment; (3) the ALJ improperly discredited her subjective complaints regarding her back pain; (4) the ALJ failed to give appropriate weight to the opinion of her treating physician; and (5) the ALJ incorrectly assessed her RFC and incorrectly found that she can perform jobs that exist in significant numbers in the national economy. We disagree with plaintiff on each of these points, and we therefore affirm the ALJ's denial of plaintiff's application for SSI payments.

A. Duty to Develop the Record.

The administrative record contains medical records from the Cherokee Nation Indian Clinic in Stillwell, Oklahoma, and the records document medical care that plaintiff received at the clinic in 2000. See A.R. at 99-103. The administrative record also contains medical records from the Redbird Smith Behavioral Health Center in Sallisaw, Oklahoma, and the records document medical care that plaintiff received at the center from February 1999 through October 2001.¹ Id. at 128-62. Plaintiff claims the ALJ erred by failing to obtain medical records dating back to January 1998 when she was in a car accident. Plaintiff also claims the ALJ erred by failing to obtain medical records pertaining to medical care she received at the Redbird Smith Medical Clinic, a facility that, according to plaintiff, is separate from the Redbird Smith Behavioral Health Center.

The burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability. Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). A social security disability hearing is nonadversarial, however, and the ALJ bears responsibility for ensuring that "an adequate record is developed during the disability hearing consistent with the issues raised." Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir.1993). As a result, "[a]n 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). Nonetheless, in cases such as this one where the claimant was represented by counsel at the hearing before the ALJ, "the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored," and the ALJ "may ordinarily require counsel to identify the issue or issues requiring further development." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir.1997).

During the hearing before the ALJ, plaintiff's counsel did not indicate or suggest to the ALJ that any medical records were missing from the administrative record, nor did counsel ask for the ALJ's assistance in obtaining any additional medical records. Moreover, under the governing regulations, the ALJ was required to develop plaintiff's medical history only for the twelve months preceding the month in which she filed her application "unless there is a reason to believe that development of an earlier period is necessary." 20 C.F.R. § 416.912(d).² Here, plaintiff filed her application in April 2001, and she has made no showing that the ALJ did not properly develop her medical history for the preceding twelve months. In addition, while plaintiff has referred in conclusory fashion to a car accident that allegedly occurred in January 1998, we are not convinced that the ALJ needed to obtain any earlier medical records in order to properly evaluate plaintiff's back impairment. In fact, we note that plaintiff's prior medical history is documented in the medical records contained in the administrative record,³ and plaintiff has made no showing that anything of significance is missing from the current record. We thus conclude that there was an adequate record by which the ALJ could decide this case.

B. Mental Impairment.

The medical records in the administrative record indicate that plaintiff has suffered from depression for several years, and that she has been prescribed Zoloft to treat her depression. See A.R. at 129, 130, 132, 133, 135, 139, 141. As noted by the ALJ, however, "the exhibits of record fail to demonstrate much in the way of a longitudinal treatment history for mental health impairment(s)." Id. at 19. We also note that Victoria Dillard, the primary individual that plaintiff was seeing at the Redbird Smith Behavioral Health Center to treat her depression, is not a medical doctor. As a result, the records generated by Ms. Dillard, id. at 130, 132, 133, did not come from an acceptable medical source under the governing regulations. See 20 C.F.R. § 416.913(a). Further, it does not appear that the Redbird Smith Behavioral Health Center employed any medical doctors. See A.R. at 179.

Because of the lack of information in plaintiff's medical records pertaining to her mental impairment, it was necessary to have plaintiff evaluated by a consulting psychologist. In July 2001, Dr. Douglas A. Brown, a clinical neuropsychologist, performed a consultative psychological examination of plaintiff, and he diagnosed her as suffering from a dysthymic disorder, a chronic pain disorder, and a personality disorder. Id. at 105. However, Dr. Brown did not report any significant limitations with respect to plaintiff's ability to function on a day-to-day basis. Id. at 104-06. To the contrary, he reported that plaintiff communicates effectively with no specific limitations in speech or language, and he also observed no abnormalities with respect to persistence, concentration, or pace. Id. at 105-06.

Based on Dr. Brown's evaluation and the administrative record as a whole, the ALJ concluded that plaintiff does not suffer from a severe mental impairment. Id. at 19-21; see also 20 C.F.R. § 416.921(a) ("An impairment ... is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities.")....