Vigil v. Colvin

• Citation: 805 F.3d 1199
• Decision Date: 28 September 2015
• Docket Number: No. 14–1478.,14–1478.
• Parties: Kenneth G. VIGIL, Plaintiff–Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

805 F.3d 1199

Kenneth G. VIGIL, Plaintiff–Appellant

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 14–1478.

United States Court of Appeals, Tenth Circuit.

Sept. 28, 2015.

Submitted on the briefs:^*

Michael W. Seckar, Pueblo, CO, for Plaintiff–Appellant.

Douglas Allen Fletcher, Alexess D. Rea, Social Security Administration, Region VIII Office of the General Counsel, J. Benedict Garcia, Office of the United States Attorney, Denver, CO, for Defendant–Appellee.

Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges.

Opinion

CAROLYN B. McHUGH, Circuit Judge.

Kenneth G. Vigil appeals from the denial of his application for disability insurance and supplemental security income benefits.

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

I.

Vigil filed for benefits alleging disability due to a bad left knee and ankle, anxiety, depression, and pain in his left heel and back. He requested and received a hearing before an administrative law judge (“ALJ”) at which he was represented by counsel. Vigil and a vocational expert (“VE”) testified.

The ALJ found that Vigil has severe impairments of degenerative changes of the lumbar spine, status post-left knee anterior cruciate ligament (“ACL”) repair, obesity

, major depressive disorder, and generalized anxiety disorder.¹ He then determined that Vigil could not perform his past relevant work as a fiberglass maker, spot welder, auto detailer, hog farmer, concrete laborer, or brick maker. The ALJ found that Vigil has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he can only occasionally bend, squat, and kneel; is unable to climb ropes, ladders, or scaffolds; can occasionally operate foot or leg controls; is unable to perform complex tasks, such that he is limited to jobs with a specific vocational preparation (“SVP”) of one or two;² and he cannot deal with the general public. After considering the VE's testimony, the ALJ determined Vigil could perform other work that existed in substantial numbers in the national economy. Accordingly, the ALJ denied benefits at step five of the five-step sequence for determining disability. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.2009) (summarizing steps). The Appeals Council denied review, and the district court affirmed.

II.

“We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th Cir.2014) (internal quotation marks omitted). “In reviewing the ALJ's decision, we neither reweigh the evidence nor substitute our judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir.2013) (internal quotation marks omitted). Vigil asserts two arguments on appeal: (1) the ALJ did not have a valid reason for rejecting the standing and walking restrictions described by his consultative physician, Dr. Summerlin, and (2) the ALJ improperly accounted for his memory and concentration deficits by limiting the skill level of work.

A.

Vigil first argues that the ALJ erred in evaluating the medical source opinion evidence from consultative examiner Dr. Summerlin when he determined Vigil's RFC. An ALJ must “give consideration to all the medical opinions in the record [and] discuss the weight he assigns to such opinions.” Keyes–Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.2012) (citations omitted). When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight he assigns to the opinion. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.2003) ; 20 C.F.R. § 404.1527(c)(2).

Vigil hurt his knee loading hay in 2006, but an x-ray showed intact osseous alignment, and there was no evidence of a fracture, cortical destruction, or joint effusion

. Admin. R. at 213. A 2006 examination showed full range of motion in the left knee with no laxity or edema, and the only restriction on his ability to stand and walk in an eight-hour day was a requirement to take a five minute rest each hour. Vigil complained of back pain in 2006, but nerve studies of his low back and left leg were normal, and showed there was no evidence of lumber radiculopathy. Id. at 227. Vigil had surgery in May 2007 for an ACL tear in his left knee. All of the 2007 post-surgical examinations indicate that Vigil had some reduced range of motion in his knee but was improving at each visit. There are no medical records for Vigil after 2007, until he was seen by Dr. Summerlin in 2010.³

Vigil saw Dr. Summerlin only once, in August 2010, shortly after he filed for benefits. Dr. Summerlin opined that “[t]he number of hours [Vigil] could be expected to stand and/or walk in an eight hour workday would be up to four hours, due to left knee osteoarthritis

and lumbar radiculopathy.” Id. at 326.

The ALJ gave Dr. Summerlin's opinion moderate weight. He specifically determined that Dr. Summerlin's opinion that Vigil could only stand and walk for four hours was not consistent with Dr. Summerlin's exam findings:

Consultative examiner Adam Summerlin, M.D. opined that the claimant was able to stand and/or walk for 4 out of 8 hours; lift 20 pounds occasionally and 20 pounds frequently; and was limited in the ability to stoop, crouch, kneel, and crawl. The undersigned gives this opinion moderate weight. The opinion was rendered after a thorough examination of the claimant and is somewhat consistent with the exam findings. However, the opinion is not clearly explained. While the limitations on carrying, lifting, and postural activities is basically consistent with the exam findings and the record as a whole, the limitations on standing and walking are not. Dr. Summerlin found normal range of motion of the knee, normal gait, and normal strength and tone. Dr. Summerlin does not reconcile the apparent discrepancy between these essentially normal findings and his opinion, and this detracts from the persuasiveness of his opinion.

Admin. R. at 18.

The ALJ's finding that Dr. Summerlin's restrictions on standing and walking were inconsistent with his own examination findings is a good reason for giving that medical opinion only moderate weight. See 20 C.F.R. § 404.1527(c)(3) (stating that “[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight [the ALJ] will give that opinion [and t]he better an explanation a source provides for an opinion, the more weight [the ALJ] will give that opinion”). Further, the ALJ's assessment of Dr. Summerlin's opinion and examination results is supported by the record. Dr. Summerlin described Vigil as having a limp on the left leg but no need for any assistive device. His x-ray examination of Vigil's left knee showed only mild osteoarthritis

, and his range of motion testing showed that Vigil had full, normal, active range of motion in his left knee and his spine. Admin. R. at 325. Dr. Summerlin also reported that Vigil had negative straight leg raises, intact deep tendon reflexes, and full muscle strength throughout. Id. at 326. These normal examination results do not indicate any inability to stand or walk for more than four hours in an eight-hour workday. As the ALJ noted, Dr. Summerlin did not give any explanation for the inconsistency between his stand/walk restriction and the actual examination results of his testing. The ALJ also recounted all of the other medical evidence in the record that indicated Vigil had a normal range of motion in his knee and spine, a normal walking gait, normal strength, and a fairly intact ability to walk and stand. The record supports the ALJ's evaluation of this evidence. The ALJ did not substitute his judgment for that of Dr. Summerlin or ignore Dr. Summerlin's findings. Rather, the ALJ considered all of Dr. Summerlin's medical evidence, as well as the record as a whole, and gave good reasons for the weight he afforded Dr. Summerlin's opinions. We see no error.

B.

Vigil next contends the ALJ failed to adequately account for his memory and concentration deficits in determining his RFC. The ALJ found at step three that Vigil has moderate difficulties in concentration, persistence, and pace in social functioning. The ALJ took these difficulties into account in formulating Vigil's RFC by limiting the skill level of his work to work with an SVP one or two. Vigil contends the ALJ should have included in his RFC his specific concentration, persistence and pace limitations, rather than account for those limitations by restricting...