Vititoe v. Colvin

• Decision Date: 29 November 2013
• Docket Number: No. 12-1484,12-1484
• Parties: DAVID VITITOE, Plaintiff-Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

DAVID VITITOE, Plaintiff-Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.

No. 12-1484

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FILED: November 29, 2013

(D.C. No. 1:11-CV-02996-LTB)

(D. Colo.)

ORDER AND JUDGMENT^*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and BACHARACH, Circuit Judge.

David Vititoe appeals from the district court's judgment affirming the Commissioner of Social Security's decision to deny his application for disability insurance benefits. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Medical evidence

Mr. Vititoe was born in June 1971. He applied for disability insurance benefits in December 2007, and his date last insured (DLI) was June 30, 2008. He based his disability claim on memory loss due to injuries sustained on October 26, 2007, when his motorcycle collided with a large truck. He suffered multiple facial and cranial fractures and a traumatic brain injury. He was in a coma for nearly a month, had a number of surgeries, and received in- and out-patient rehabilitative therapy at Spalding Rehabilitation Hospital.

On January 7, 2008, after his time at Spalding ended, Mr. Vititoe saw a rehabilitation physician, Dr. David Mulica, who opined that "he has limited insight into his deficits" and "is probably more impaired than he appears today." Tr. at 355.¹ Mr. Vititoe was emotionally labile but could recall recent presidents back to Gerald Ford, knew that Dick Cheney was then Vice President, correctly performed single calculations and explained similarities for two objects, and was able to recall one out of three objects at three minutes. Physically, Mr. Vititoe's cranial nerves were intact; his strength, bulk, and tone were normal; his reflexes were symmetric; his finger-to-nose and heel-to-shin tests were normal; he could perform tandem walking;and his gait was grossly normal. Dr. Mulica increased Mr. Vititoe's trazodone (an antidepressant), continued him on Aracept (for memory), and recommended speech therapy from Ellen Minick. He asked Mr. Vititoe to follow up with him in April.

Mr. Vititoe saw Ms. Minick for speech therapy several times between January 8 and February 19, 2008. In the progress note from the last visit, Ms. Minick stated that Mr. Vititoe "exhibited excellent planning, self-monitoring and self-correction. He was able to stay on task even with numerous distracters. He was able to complete the task accurately and timely." Id. at 345.

Mr. Vititoe saw Dr. Mulica again on April 21, 2008, complaining about anger and temper problems and some ankle pain, but he stated that he "seems to be getting better." Id. at 484. Dr. Mulica suggested anger management and prescribed Celexa for depression. Mr. Vititoe followed up by telephone on May 21, 2008, stating that he was "less emotionally labile on Celexa" and that his leg buckled under him. Id. at 769. Mr. Vititoe next saw Dr. Mulica on June 12, 2008, complaining of left ankle pain and left thigh numbness. Dr. Mulica noted that Mr. Vititoe scored "moderate on dep[ression] screen" and increased the dosage of Celexa. Id. at 764. Dr. Mulica's telephone follow-up with Mr. Vititoe on July 10, 2008, showed he was doing well on the increased dosage. Dr. Mulica next saw Mr. Vititoe on August 13, 2008, when Mr. Vititoe complained that his "depression hits harder at times," he was "experiencing word finding issues," and he "[n]eeds to make lists." Id. at 761. Dr. Vititoe thought these complaints were "not surprising" but "consistent with [the]original injury." Id. He increased the Celexa and asked Mr. Vititoe to call him in a week. Mr. Vititoe's next contact with Dr. Mulica was by telephone on December 29, 2008, when he said he was "[s]till having problems with memory and cognition." Id. at 732. Dr. Mulica "[e]ncouraged" Mr. Vititoe to "contact speech[]" and prescribed Amantadine for memory and cognition. Id.

Dr. Mulica did not hear from or see Mr. Vititoe again until an office visit on March 24, 2010. Mr. Vititoe stated he had been in prison for much of the preceding year due to a parole violation and was "now developing increased anger." Id. at 714. Dr. Mulica prescribed Ativan for anxiety and asked Mr. Vititoe to follow up by phone in three weeks. During that follow-up, on April 14, 2010, Dr. Mulica increased the dosage of Ativan. Id. at 712.

On April 22, 2010, Dr. Mulica completed a Functional Capacity Questionnaire (FCQ) reflecting his opinion that, due to the brain injury and impaired cognition, Mr. Vititoe had severe physical and mental limitations and would miss more than four days of work each month. Those limitations included rarely lifting no more than ten pounds; standing/walking two hours and sitting four hours per eight-hour workday; marked restrictions in maintaining concentration, persistence, and pace; and repeated episodes of decompensation within a twelve-month period, each of at least two weeks' duration. Id. at 679-80.

Mr. Vititoe was also examined, at the Commissioner's request, by Brett Valette, Ph.D., and Dr. Laura Moran, M.D. Dr. Valette performed a psychologicalexamination on April 21, 2008, administering tests on which Mr. Vititoe performed in the average range for most memory functions but above average in visual immediate memory. He had a full-scale IQ of 98 and a GAF (Global Assessment of Functioning) score of 70-75.² Dr. Valette diagnosed him with a nonspecific cognitive disorder and stated that although Mr. Vititoe's memory function may have been higher before his accident, it was still in the average range.

Dr. Moran performed a physical examination of Mr. Vititoe on May 19, 2008. Mr. Vititoe exhibited an inability to walk on his toes, decreased right hip strength, and numbness of his right anterior thigh. Dr. Moran noted that although Mr. Vititoe complained of some ankle and lower back pain, the examination findings of those areas were normal. She stated that she would not limit his physical activities.³

B. The agency's decision

After Mr. Vititoe's disability application was denied initially and on review, an Administrative Law Judge (ALJ) held a hearing at which Mr. Vititoe wasrepresented by counsel. Mr. Vititoe, his wife, and a vocational expert (VE) testified. Among other things, Mr. Vititoe stated that he forgets things like appointments and what he's read; has no sense of smell; gets shooting pain in his leg, back, and shoulder when he sits or stands too long; has poor impulse control; cannot manage his personal finances; and can sit for only ten or fifteen minutes before having to lie down for an hour or an hour-and-a-half. He also said that his medicines make him irritable and sap his energy, his right leg is numb and buckles if he does not support himself, and he cannot look up without getting dizzy. He further noted that shoe inserts Dr. Mulica had given him for right knee pain had caused more problems, and that he had two surgeries for an airway scar caused by a breathing tube used during the month following his accident.

In a decision dated September 20, 2010, the ALJ denied benefits. The ALJ found that Mr. Vititoe had two severe impairments—"status-post multiple skull and facial fractures requiring two repair surgeries/craniotomies and resulting in mild cognitive disorder, and mild degenerative lumbar disc disease," id. at 23—but neither impairment met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the Listings). The ALJ next found that Mr. Vititoe had the residual functional capacity (RFC) to perform light work with a variety of limitations, including that he not be required (1) "to sit for more than 45 minutes at one time without the opportunity to stand," (2) "to do more than the lower-end of detailed instructions," or (3) "to have more than superficial interaction with thepublic." Tr. at 25. In reaching that RFC, the ALJ rejected the more severe limitations expressed in Dr. Mulica's FCQ. Based on that RFC and the VE's testimony, the ALJ found that Mr. Vititoe could not have returned to his past relevant work through his DLI. The ALJ next found that Mr. Vititoe could not perform the full range of light work due to the noted limitations, and therefore the Medical-Vocational rules (the Grids) could not be used to direct a finding that he was not disabled. The ALJ then determined, based on the VE's testimony, that Mr. Vititoe could have performed other work prior to his DLI that existed in significant numbers in the national economy, such as photocopy machine operator and office helper. Accordingly, the ALJ found Mr. Vititoe not disabled at step five of the sequential process set forth in 20 C.F.R. § 404.1520(a)(4).

Through counsel, Mr. Vititoe appealed to the Appeals Council and supplied additional evidence for the Council's consideration. Only one piece of that evidence is germane to the issues properly before us in this appeal—a letter dated November 11, 2010, from Mr. Vititoe's chiropractor, Paula Santistevan, stating that Mr. Vititoe had a variety of physical and mental issues that precluded him from working. In considering this letter, the Council pointed out that the ALJ had decided the case through Mr. Vititoe's DLI, June 30, 2008, but Ms. Santistevan's letter concerned a later period of time. Therefore, the Council concluded it did not affect the disability determination and did not make it part of the administrative record.

C. The district court's decision

Mr. Vititoe filed a pro se complaint in the district court seeking review of the Commissioner's decision. In addition to his substantive arguments, he asked (albeit in his reply brief) for a remand under sentence six of 42 U.S.C. § 405(g) for consideration of medical reports from Dr. Alan Weintraub, M.D., and James Berry, Ph.D., that he had attached to his opening brief.⁴ Both reports contained extensive examination findings, and both sources stated that Mr. Vititoe was...