Keyes–Zachary v. Astrue

• Decision Date: 18 September 2012
• Docket Number: No. 11–5152.,11–5152.
• Parties: Pennie L. KEYES–ZACHARY, Plaintiff–Appellant, v. Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

695 F.3d 1156

Pennie L. KEYES–ZACHARY, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant–Appellee.

No. 11–5152.

United States Court of Appeals,Tenth Circuit.

Sept. 18, 2012.

Submitted on the briefs: ^*

Timothy M. White and Richmond J. Brownson, Tulsa, OK, for Plaintiff–Appellant.

Thomas Scott Woodward, United States Attorney, Cathryn McClanahan, Assistant United States Attorney, Michael McGaughran, Regional Chief Counsel, Region VI, Virginia Watson Keyes, Special Assistant United States Attorney, Office of General Counsel, Region VI, Social Security Administration, Dallas, TX, for Defendant–Appellee.

Before HARTZ, ANDERSON, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Pennie L. Keyes–Zachary appeals from an order of the district court affirming the Commissioner's decision denying her applications for Social Security disability and Supplemental Security Income benefits. Ms. Keyes–Zachary's protected filing date was June 7, 2004. She alleges disability based on, among other things, neck, back, shoulder, elbow, wrist, hand, and knee problems, accompanied by pain; hearing loss; urinary frequency; anger-management problems; depression; and anxiety.

This case has a rather lengthy procedural history. After the agency denied her 2004 applications initially and on reconsideration, Ms. Keyes–Zachary received her first hearing before an administrative law judge (ALJ) on July 18, 2006. She testified at the hearing to her medical condition and limitations. The ALJ upheld the denial of her application for benefits. The Appeals Council denied her request for review of the ALJ's decision, and she then appealed to the district court. The district court remanded the case to the ALJ for further consideration.

On September 22, 2009, the ALJ held a second hearing, at which Ms. Keyes–Zachary again testified. In his decision following this hearing, the ALJ determined that she retained the residual functional capacity (RFC) to perform light work, defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with certain restrictions. He elaborated:

[T]he claimant is able to lift and/or carry 20 pounds, stand and/or walk 6 hours in an 8 hour workday at 30 minute intervals, sit 6 hours in an 8 hour workday at 2 hour intervals, and she is limited in her ability to climb and squat. The claimant is able to occasionally bend, stoop, crouch, crawl, operate foot controls, push and/or pull with her right upper extremity, reach overhead with her right upper extremity, and twist/nod her head. The claimant is slightly limited in her ability to finger, feel and grip with her right upper extremity and she should avoid fine vision, low noise, dust, fumes and gases, rough uneven surfaces, unprotected heights, fast and dangerous machinery, and heat/wet environments and she requires easy accessibility to rest rooms. Additionally, the claimant is able to perform simple, repetitive and routine tasks and is slightly limited in reference to contact with the general public, co-workers and supervisors.

Aplt.App., Vol. 3 at 469.

The ALJ found that Ms. Keyes–Zachary could not return to her past relevant work as a cook's helper, stuffer, sewer, inspector, and retail cashier/stocker, but that considering her age, education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that she could perform, such as arcade attendant, bench assembler, order clerk, or clerical mailer. Applying the Medical–Vocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.18 as a framework, the ALJ concluded that Ms. Keyes–Zachary was not disabled within the meaning of the Social Security Act. The Appeals Council declined jurisdiction, making the ALJ's decision the Commissioner's final decision.

We review the Commissioner's decision to determine whether the ALJ's “factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

On appeal Ms. Keyes–Zachary raises two issues. She first argues that the ALJ “failed to properly consider, evaluate and discuss the medical source evidence.” Aplt. Br. at 16. Second, she contends that the ALJ “failed to perform a proper credibility determination.” Id. at 21. She also presents a number of subissues and arguments, many of them poorly developed. We will consider and discuss only those of her contentions that have been adequately briefed for our review. See Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.2004) (“The scope of our review ... is limited to the issues the claimant ... adequately presents on appeal.” (internal quotation marks omitted)).

I. ALJ's evaluation of medical-source evidence

A. ALJ's weighing of medical opinions

We begin with Ms. Keyes–Zachary's argument about the medical-source evidence. The centerpiece of this argument is her contention that the ALJ failed to weigh the medical opinions in the file.

It is the ALJ's duty to give consideration to all the medical opinions in the record. See20 C.F.R. §§ 404.1527(c), 416.927(c). He must also discuss the weight he assigns to such opinions. See id. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii) (“[T]he administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician, psychologist, or other medical specialist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us.”).

Ms. Keyes–Zachary cites five opinions that allegedly were not weighed: three consulting-examiner reports; a comprehensive mental-health assessment from a mental-health provider; and a mental-status form from a treating physician. But with two minor exceptions, which we will discuss, she does not identify any inconsistencieseither among these medical opinions or between the opinions and the ALJ's RFC. See Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.2004) (“When the ALJ does not need to reject or weigh evidence unfavorably in order to determine a claimant's RFC, the need for express analysis is weakened.”).

1. Dr. Gordon's consultative examination report

The first opinion that Ms. Keyes–Zachary complains was not properly weighed is a psychological evaluation prepared by a consulting psychologist, Dr. Minor W. Gordon, Ph.D. Dr. Gordon concluded that she suffered from dysthymic disorder, mild to moderate; learning disabilities; and mild impairment at Axis IV. He gave her a GAF (Global Assessment of Functioning) score of 65.¹ The ALJ discussed Dr. Gordon's report at some length but never explicitly stated whether he found it persuasive or what weight he assigned to it.

This alleged error in the ALJ's decision did not, however, prejudice Ms. Keyes–Zachary, because giving greater weight to Dr. Gordon's opinion would not have helped her. Dr. Gordon accompanied his report with a mental-medical-source statement opining that she had “no limitation” or “no significant limitation” in every category relevant to work function. The ALJ noted this lack of limitations in Dr. Gordon's opinion and developed a mental RFC consistent with Dr. Gordon's findings in some areas but more favorable to Ms. Keyes–Zachary than Dr. Gordon's findings in other areas.²Cf. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004) (approving harmless-error analysis when “based on material the ALJ did at least consider (just not properly), we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way.”).

2. Dr. Reddy's consultative-examination report

Ms. Keyes–Zachary also mentions a physical-consultative-examination report prepared by Dr. Sri K. Reddy. The report itself expresses few conclusions about her physical capacities, but Dr. Reddy's accompanying physical-medical-source statement opined that Ms. Keyes–Zachary could sit, stand, or walk for eight hours at a time and for eight hours in an eight-hour workday and otherwise found only modest limitations. The ALJ discussed this record but did not expressly weigh it. His RFC, however, is generally consistent with Dr. Reddy's findings. There is no reason to believe that a further analysis or weighing of this opinion could advance Ms. Keyes–Zachary's claim of disability. The alleged error is harmless.

3. Therapist Blasdel's mental-health assessment

Next is a mental-health assessment performed by therapist Bob Blasdel. Mr. Blasdel is neither a physician nor a psychologist; his credentials are stated as “MS, LADC, LMFT.” Id. at 823. The ALJ did discuss his report in two paragraphs, but did not provide any analysis from which it can be determined what weight he gave to it.

Although Mr. Blasdel is not an “acceptable medical source” such as a medical doctor or a licensed psychologist, see20 C.F.R. § 404.1513(a), the ALJ was still required to explain the amount of weight he gave to the opinions he expressed:

[T]he adjudicator generally should explain the weight given to opinions from these “other sources,” or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case.

SSR 06–03p, 2006 WL 2329939, at *6 (Aug. 9, 2006).

Most of Mr. Blasdel's report is a narrative summary of statements by Ms. Keyes–Zachary. These portions of the report do not express any opinions concerning her “symptoms, diagnosis and prognosis, what [she] can still do despite the impairment(s), [or her] physical and mental restrictions.” Id. at *5. The ALJ was not required to assign a weight to Mr....