Poppa v. Astrue

• Decision Date: 27 May 2009
• Docket Number: No. 08-4209.,08-4209.
• Citation: 569 F.3d 1167
• Parties: Kathy L. POPPA, Plaintiff-Appellant, v. Michael J. ASTRUE, in his capacity as Commissioner of the Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

569 F.3d 1167

Kathy L. POPPA, Plaintiff-Appellant, v. Michael J. ASTRUE, in his capacity as Commissioner of the Social Security Administration, Defendant-Appellee.

No. 08-4209.

United States Court of Appeals, Tenth Circuit.

May 27, 2009.

Michael E. Bulson, Utah Legal Services, Wendy Fenton, Law Office of Wendy W. Fenton, Salt Lake City, UT, for Plaintiff-Appellant.

Amy J. Oliver, U.S. Attorney's Office, Salt Lake City, UT, Alexess D. Rea, Social Security Administration, Denver, CO, for Defendant-Appellee.

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT^*

PAUL KELLY, JR., Circuit Judge.

Kathy L. Poppa appeals from an order of the district court affirming the Commissioner's decision denying her application for supplemental security income (SSI) benefits. The claim at issue in this appeal was filed on January 20, 2004, alleging disability since June 1, 2002.¹ The agency denied Ms. Poppa's application initially and on reconsideration. Ms. Poppa received a de novo hearing before an administrative law judge (ALJ). Because the ALJ concluded that Ms. Poppa had the residual functional capacity (RFC) for sedentary work and that she could perform a significant number of jobs in the national economy, he denied her claim for SSI benefits. The Appeals Council denied review and Ms. Poppa appealed to the district court. The district court reversed and remanded for further findings.

On remand, Ms. Poppa had another hearing before a different ALJ. Ms. Poppa submitted additional evidence at the hearing. The second ALJ determined that Ms. Poppa had severe impairments from spine and knee arthritis, mental disorders, fibromyalgia, and carpal tunnel but he concluded that none of the impairments or combination of impairments met or equaled any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that Ms. Poppa had the RFC to perform a limited range of light exertional work. He denied Ms. Poppa's application for benefits, concluding that she was not disabled at step five of the analysis because she could perform a significant number of jobs in the national economy. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (explaining five-step process for evaluating claims for disability benefits). The Appeals Council denied review. Ms. Poppa sought further review in the district court and that court affirmed the ALJ's decision. This appeal followed.

We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Because the Appeals Council declined to review Ms. Poppa's appeal after the second ALJ denied her claim for benefits, that ALJ's decision is the Commissioner's final decision for purposes of our review. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). "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." Id. at 760. On appeal, Ms. Poppa argues: (1) the ALJ violated res judicata or the law of the case doctrine by changing her RFC from sedentary to light; (2) the ALJ's finding that she could perform light work is not supported by substantial evidence and (3) the ALJ erred in not complying with Social Security Ruling (SSR) 00-4p. We affirm.

Res Judicata and the Law of the Case Doctrine

Ms. Poppa contends that the second ALJ's decision violated either res judicata or the law of the case doctrine because those doctrines precluded the second ALJ from relitigating the issue of her RFC after it was established in the first ALJ's decision. We disagree with Ms. Poppa's contention.

Res judicata applies in the social security context when there has been a "previous determination or decision . . . about [the claimant's] rights on the same facts and on the same issue or issues, and this previous determination has become final by either administrative or judicial action." 20 C.F.R. § 416.1457(c)(1) (emphasis added). Here the first ALJ's decision does not constitute a final decision for the purposes of res judicata because Ms. Poppa sought review of the first ALJ's decision from the Appeals Council and then the district court. See id. § 416.1455(b) (explaining that an ALJ's decision is binding on all parties to the hearing unless the claimant requests review of the decision by the Appeals Council, the Appeals Council denies review, and the claimant seeks judicial review in district court).

Our conclusion that administrative res judicata does not apply in this case is consistent with our precedent. See Hamlin v. Barnhart, 365 F.3d 1208, 1223-24 (10th Cir.2004) (noting that after remand from the Appeals Council, "[i]t was certainly within the ALJ's province, upon reexamining [claimant's] record, to revise his RFC category"); Campbell v. Bowen, 822 F.2d 1518, 1521-22 (10th Cir.1987) (holding that the ALJ did not err in changing claimant's RFC from sedentary to light after remand from the Appeals Council). The Sixth Circuit case cited by Ms. Poppa is distinguishable because that case involved two separate applications for benefits and a final decision had been issued on the earlier application, see Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 838-39, 841 (6th Cir.1997). In contrast, this case involves one application for benefits and the first ALJ's decision did not constitute a final decision.

The second ALJ's RFC determination likewise does not violate the principles of the law of the case doctrine. Under that doctrine, an "administrative agency, on remand from a court, [must] conform its further proceedings in the case to the principles set forth in the judicial decision . . . ." Copart, Inc. v. Admin. Review Bd., U.S. Dep't of Labor, 495 F.3d 1197, 1201 (10th Cir.2007) (quotation omitted). The law of the case doctrine only "applies to issues previously decided, either explicitly or by necessary implication." Id. (quotation omitted). Here, the district court's decision reversing and remanding the ALJ's first decision did not make any determinations, explicitly or implicitly, regarding the first ALJ's assessment of Ms. Poppa's RFC.

On remand, the district court instructed the ALJ to reconsider Ms. Poppa's credibility applying the relevant factors from SSR 96-7p and to make findings linked to evidence in the record.² The regulations require that an ALJ's RFC be based on the entire case record, including the objective medical findings and the credibility of the claimant's subjective complaints. See 20 C.F.R. §§ 416.929, 416.945. Since the purpose of the credibility evaluation is to help the ALJ assess a claimant's RFC, the ALJ's credibility and RFC determinations are inherently intertwined. A new determination on Ms. Poppa's credibility necessarily required reassessment of the RFC. Because there was no explicit or implicit decision by the district court on the validity of the first ALJ's RFC determination, the second ALJ was free to reassess the RFC on remand without violating the law of the case doctrine. Cf. Campbell, 822 F.2d at 1521-22 (concluding that redetermination of RFC on remand from Appeals Council was not inconsistent with the Appeals Council's remand order and that the remand order did not bind the ALJ to the earlier decision).

The RFC Assessment

Ms. Poppa argues that substantial evidence does not support the second ALJ's RFC finding because (1) no exceptions to the law of the case doctrine apply and the second ALJ was bound by the first ALJ's RFC finding; (2) the ALJ's assessment of her credibility was flawed; and (3) the opinion evidence considered by the ALJ does not support an RFC for light work.

We note initially that we will not address Ms. Poppa's first issue. Because we conclude that the second ALJ's decision did not violate the law of the case doctrine, we do not need to address whether an exception to that doctrine applies.

Credibility Determination

Ms. Poppa argues that the ALJ's credibility determination was flawed. Ms. Poppa asserts that the ALJ erred because he did not consider the relevant factors as required by SSR 96-7p. Our precedent "does not require a formalistic factor-by-factor recitation of the evidence . . . [s]o long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility." Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.2000). The ALJ set forth the factors from SSR 96-7p and then spent the next several pages identifying evidence from the record that related to the factors and supported his credibility determination.³ See Aplt.App., Vol. II at 400-03. The ALJ properly considered the relevant factors and the evidence in the record in making his credibility determination.

Ms. Poppa also disputes the ALJ's conclusion that Ms. Poppa has shown drug-seeking behavior and that this impacted her credibility. She argues that "[i]n the entire record there is only one reference to possible inappropriate use of pain medications—a single entry on July 26, 2005 that Poppa had a history of `"pain medication seeking as well as Soma seeking requests."'" Aplt. Br. at 28 (quoting Aplt.App., Vol. II at 533). Ms. Poppa's statement is not accurate because the ALJ referenced other record evidence to support his conclusion about Ms. Poppa's drug-seeking behavior. For example, in discussing an August 19, 2005 doctor's visit, the ALJ noted that Ms. Poppa wanted to increase her Oxycontin to three times a day, which was against clinic policy and against recommended dosing. She also said she was going on vacation and wanted Lortab to use when her Oxycontin ran out. She was vague about how long she would be gone on vacation (2-3 weeks). [The doctor] refused to prescribe the Lortab and also refused her request to post date the prescription.

Aplt.App., Vol. II at 401. The ALJ noted also that on February 23, 2006, Ms. Poppa "initiated [a] higher dose of Oxycontin on her own," and that on December 29, 2006, "she again asked for a post dated narcotic prescription." Id.⁴...