Hackett v. Barnhart

• Decision Date: 24 January 2005
• Docket Number: No. 04-1047.,04-1047.
• Parties: Elizabeth HACKETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

395 F.3d 1168

Elizabeth HACKETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.

No. 04-1047.

United States Court of Appeals, Tenth Circuit.

January 24, 2005.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Ann J. Atkinson, Aurora, CO, for Appellant.

John W. Suthers, United States Attorney; Kurt J. Bohn, Assistant U.S. Attorney; Michele M. Kelley, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Denver, CO, for Appellee.

Before HARTZ, and BALDOCK, Circuit Judges, and BRIMMER,^** District Judge.

HARTZ, Circuit Judge.

Plaintiff Elizabeth Hackett appeals from an order of the district court affirming the Commissioner's decision to deny her application for Social Security disability benefits. Plaintiff is a college graduate who has past relevant experience as a checker/cashier, a director of occupational therapy, a program coordinator for an acute-care hospital, an occupational therapist, a wedding coordinator, and a life-care instructor in a group home. At the time her alleged disability began, she was 31 years old. She claims her disability is due to "bilateral (RSD) reflex sympathetic dystrophy, right tenosyn[o]vitis, limited range of motion, upper back pain, depression and migraines." Aplt.App., Vol. II at 103.

Plaintiff contends that the decision of the Commissioner should be set aside on three grounds: (1) on her appeal from the decision of the administrative law judge (ALJ), the Social Security Appeals Council did not properly consider the permanent-and-total-disability decision of the Colorado Executive Department in her workers' compensation case; (2) the ALJ's findings regarding her residual functional capacity (RFC) are unsupported by substantial evidence because there is inadequate support for the ALJ's finding that she was not credible and the ALJ did not properly consider the opinions of her treating physicians; and (3) the ALJ misstated the testimony of the vocational expert (VE) and failed to reconcile the VE's actual testimony with the Dictionary of Occupational Titles. We have jurisdiction over this appeal under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We affirm on all grounds except the failure to reconcile. We reverse in part and remand to the district court with directions to remand to the agency for further proceedings.

I Background

The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. See id. at 751 & n. 2. If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient RFC to perform work in the national economy, given her age, education, and work experience. See id. at 751.

The ALJ determined that Plaintiff was not disabled. He found that she could perform a wide range of sedentary work compromised only by certain physical and mental limitations to be discussed below. After deciding at step one that Plaintiff had not engaged in significant gainful activity since her alleged disability onset date, the ALJ found at step two that, individually or in combination, Plaintiff's alleged impairments were severe. At step three, however, the ALJ found that Plaintiff's impairments were not severe enough to meet or to equal any of the listed impairments in the Social Security Regulations that would require a finding that she was disabled.

At step four the ALJ found that Plaintiff retained the RFC to perform sedentary work that involves "maximum lifting of ten pounds and no prolonged walking or standing activities." Aplt.App., Vol. II at 32. According to the ALJ, Plaintiff could sit continuously for 90 minutes (six hours out of an eight-hour day) and stand and walk continuously for 30 minutes (four hours out of an eight-hour day). The ALJ also found that Plaintiff's RFC is diminished by non-exertional restrictions in that she can engage in "only occasional crawling, reaching above shoulder level, pushing and pulling, fingering and grasping." Although Plaintiff can frequently stoop, crouch, squat, and climb stairs, she cannot climb ladders, balance and work around dangerous machinery, or do a job where driving is a major job requirement. The ALJ further found that Plaintiff "should avoid exposure to temperature extremes, vibration, and concentration of dust, fumes and chemicals." Id.

With regard to her mental limitations, the ALJ found that Plaintiff "retains the attention, concentration, persistence and pace levels required for simple and routine work tasks." Id. She can perform work under general supervision, "but needs to work in a low stress environment and avoid direct contact with the general public and have only occasional interaction with co-workers." Id. Plaintiff is moderately restricted in "following work rules and responding to supervision." Id.

At step four the ALJ also determined that Plaintiff could not return to her past relevant work as a checker/cashier, wedding coordinator, adult health aide, occupational therapist, or director of occupational therapy. But at step five the ALJ, using the Medical-Vocational Guidelines as a framework, see 20 C.F.R. § 404.1569 and Pt. 404, Subpart P, App. 2, Table No. 1, Rule 201.28, and also relying on the testimony of a VE, concluded that Plaintiff was not disabled because she could perform work as a call-out operator and a surveillance-system monitor, both jobs existing in significant numbers.

The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003).

II Standard of Review

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. Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989) (internal quotation marks omitted). We consider whether the ALJ followed the "specific rules of law that must be followed in weighing particular types of evidence in disability cases," Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir.1988), but we will not reweigh the evidence or substitute our judgment for the Commissioner's, see Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir.2000).

III Discussion

1. Workers' Compensation Finding

Plaintiff first argues that the Appeals Council erred in failing to give proper consideration to a decision rendered by the Colorado Executive Department finding Plaintiff permanently and totally disabled for workers' compensation purposes. Because the state agency decision did not become available until after the hearing before the ALJ, Plaintiff submitted the evidence to the Appeals Council, which made it a part of the record. See O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994) (new evidence submitted to the Appeals Council becomes part of the administrative record for purposes of judicial review).

We have held that "[a]lthough findings by other agencies are not binding on the [Commissioner], they are entitled to weight and must be considered." Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir.1993) (internal quotation marks omitted). Assuming, without deciding, that the holding in Baca applies to findings by state agencies, we agree with the district court that the Appeals Council fulfilled its obligation to consider the workers' compensation decision.

Plaintiff has not pointed to any specific factual finding or evidence in the state disability determination that should have changed the Appeals Council's decision. To the extent that the state agency differed from the ALJ in assessing credibility, there is of course no reason why the Appeals Council must always adopt the state agency's view over that of the ALJ. Plaintiff complains that the Appeals Council's reference to the state proceeding was perfunctory — the Appeals Council wrote only that it had considered the additional evidence submitted "but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." Aplt.App., Vol. II at 7. Yet, our general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter. See United States v. Kelley, 359 F.3d 1302, 1304-05 (10th Cir.2004) (district court must consider certain factors before imposing prison time for probation violation, but court need only say that it has done so); cf. Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir.1991) (refusing to "look behind a district court's express statement that it engaged in a de novo review of the record"). We reject this claim of error.

2. RFC Findings

Plaintiff next argues that the ALJ's findings regarding her RFC are not based on substantial evidence because he did not cite any factors contradicting her credibility and failed to give controlling weight to the opinions of her treating physicians.

a. Credibility

The ALJ found that "claimant's testimony is not fully credible to the extent she alleges total disability and a total inability to sustain work activity." Aplt.App., Vol. II at 35. As support for this conclusion, the ALJ pointed to Plaintiff's daily activities and contradictions in her various reports regarding them. He also cited medical evidence showing that her left upper extremity had stabilized and that she had responded to conservative treatment for pain. And he noted that Plaintiff's mental impairments, while present to some...