Davison v. Colvin
| Decision Date | 22 December 2014 |
| Docket Number | No. 14-1122,14-1122 |
| Parties | KENNETH DAVISON, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER AND JUDGMENT*Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
Kenneth Davison appeals from an order of the district court affirming the Commissioner's decision denying his applications for disability benefits and supplemental security income benefits under the Social Security Act. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.
Mr. Davison worked as a furniture mover for six years when he was fired in August 2011. He was briefly hospitalized in September 2011, and again in March 2012, with psychotic symptoms after failing to take psychiatric medications. He recompensated quickly both times after taking his medications. He did not seek further mental health treatment. Mr. Davison applied for disability and supplemental security benefits in October 2011, alleging disability since August 2011 due to back problems, hand problems, and depression.
Mr. Davison's applications were denied initially, and he requested and received a de novo hearing before an administrative law judge (ALJ) in July 2012. The ALJ found Mr. Davison not disabled at step five of the controlling five-step sequential analysis. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (). At step one, the ALJ confirmed that Mr. Davison had not worked since his alleged onset of disability, August 12, 2011. At step two, he found that Mr. Davison had the following severe impairments: schizoaffective disorder, bipolar disorder, borderline intellectual functioning, and personality disorder. But he concluded at step three that these impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Pt. 404, Subpart P, App. 1.
At step four, the ALJ determined that Mr. Davison's impairments left him with a residual functional capacity (RFC) to perform a reduced range of unskilled mediumwork, with certain restrictions. Relying in part on associated inquiries to the vocational expert (VE) who testified at the hearing, the ALJ concluded that Mr. Davison could not perform his past relevant work (PRW) as a furniture mover. Proceeding to step five, the ALJ concluded that Mr. Davison is not disabled because there are jobs that exist in significant numbers in the national economy that he can perform. The VE testified that these jobs include commercial cleaner, window cleaner, and floor waxer.
The Appeals Council denied Mr. Davison's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Mr. Davison then sought judicial review of the Commissioner's decision, and the district court affirmed. Mr. Davison now appeals.
"We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Lax, 489 F.3d at 1084 (internal quotation marks omitted). Id. (citation omitted) (internal quotation marks omitted). "In reviewing the [Commissioner's] decision, we neither reweigh the evidence norsubstitute our judgment for that of the agency." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted).
Mr. Davison raises three challenges to the Commissioner's decision: (1) the ALJ erred in concluding that Mr. Davison did not meet Listing 12.03; (2) the ALJ failed to develop the record regarding evidence of Mr. Davison's intellectual disability, illiteracy, and a somatic pain disorder; and (3) the ALJ's RFC assessment is not supported by substantial evidence.
Mr. Davison first argues that the ALJ erred by failing to conclude that he met Listing 12.03 (schizophrenic, paranoid and other psychotic disorders).
Lax, 489 F.3d at 1085 (internal citations, quotation marks, and brackets omitted). A claimant will only be presumed disabled if an impairment, or a combination of impairments, meets or equals all the requirements of a listing. Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). The burden is on the claimant to present evidence establishing that his impairments meet or equal listed impairments. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
Listing 12.03 is "[c]haracterized 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. In order for the ALJ to have found that Mr. Davison's mental limitation met the required level of severity under Listing 12.03, Mr. Davison had to satisfy requirements under 12.03(A) and (B), or alternatively, 12.03(C). See id. At issue is whether the ALJ erred in concluding that Mr. Davison failed to satisfy Paragraph B. Paragraph B requires that a medically documented condition specified in Paragraph A results "in at least two of the following: 1. marked restriction of activities of daily living; or 2. marked difficulties in maintaining social functioning; or 3. marked difficulties in maintaining concentration, persistence, or pace; or 4. repeated episodes of decompensation, each of extended duration." Id.
Relying on the record and the testimony of Dr. Buban, the impartial psychological expert, the ALJ determined that Mr. Davison did not satisfy the Paragraph B criteria. The ALJ found that Mr. Davison had mild restrictions in activities of daily living; moderate difficulties in social functioning; and moderate to marked difficulties with regard to concentration, persistence, or pace. The ALJ accepted Dr. Buban's testimony that Mr. Davison's concentration, persistence, or pace were markedly impaired when he experienced an acute psychosis, but that he had at most moderate limitations once he recompensated. The ALJ also only found two episodes of decompensation of extended duration. See Aplt. App., Vol. 1 at 17-18.
Mr. Davison suggests the ALJ erred in concluding that because Mr. Davison's psychotic symptoms "resolved temporarily when [he] received in-patient treatment," he did not meet the requirements of a listing. Aplt. Br. at 15. He argues that Paragraph A expressly provides that symptoms may be "either continuous or intermittent." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03. Because Paragraph B criteria result from Paragraph A criteria, he claims the Paragraph B criteria may likewise be intermittent. But Mr. Davison's emphasis on the term "intermittent" is misguided. The import of the descriptive terms "continuous or intermittent" is to modify and provide temporal breadth to the preceding term, "medically documented persistence," found in Paragraph A. See id. (emphasis added). That is, the criteria in Paragraph A may persist over a continuous period or may persist over intermittent periods.
But at all times, to qualify as meeting the requirements of a listing, a claimant must establish that his impairment meets the twelve-month duration requirement. See 20 C.F.R. §§ 404.1525(c)(3), 404.1509. If Mr. Davison is suggesting otherwise, his construction of Listing 12.03 is untenable. And, ultimately, in any event, the medical evidence does not establish that Mr. Davison has two "marked" limitations. Indeed, the medical opinion evidence states that Mr. Davison did not meet the Paragraph B criteria.
But Mr. Davison also argues that the ALJ erred in determining that he had not established repeated episodes of decompensation because the ALJ only consideredthose periods that resulted in involuntary commitment to a hospital.1 He argues that episodes of decompensation can consist of periods of decreased function and do not require hospitalization. "Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs that would ordinarily require increased treatment or a less stressful situation." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). They "may be inferred from medical records showing significant alteration in medication . . . or documentation of the need for a more structured psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and directing household)." Id. Although Mr. Davison is correct that he may establish episodes of decompensation with evidence other than hospitalization, he failed to do so. Outside of his two hospitalizations, he provided the ALJ with no other evidence of decompensation. Indeed, the record provided to the ALJ showed no medical treatment of Mr. Davison for his mental impairments after discharge.
Furthermore, the listings define the term "repeated episodes of decompensation, each of extended duration" as "three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks." Id. Even though neither of Mr. Davison's hospitalizations lasted two weeks, the ALJ determinedMr. Davison had established two episodes of decompensation. But Mr. Davison failed to establish, as required by the listing, a third episode of decompensation.2
Contrary to Mr. Davison's arguments, we conclude that substantial evidence supports the ALJ's determination that Mr. Davison did not meet the requirements of Listing 12.03.
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