Wilson v. Astrue, No. 08-3325 (10th Cir. 2/17/2010)

• Decision Date: 17 February 2010
• Docket Number: No. 08-3325.,08-3325.
• Parties: POLLY A. WILSON, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

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POLLY A. WILSON, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

No. 08-3325.

United States Court of Appeals, Tenth Circuit.

February 17, 2010.

(D.C. No. 6:07-CV-01147-JTM), (D. Kan.)

Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.

ORDER AND JUDGMENT^*

WADE BRORBY, Senior Circuit Judge.

Plaintiff-appellant Polly A. Wilson appeals from an order of the district court affirming the Commissioner's decision denying her applications for Social Security disability and for Supplemental Security Income benefits (SSI). Ms. Wilson alleged an disability onset date of June 26, 1998. Her date last insured was December 31, 2002; thus she had the burden of proving that she was totally disabled on that date or before. See Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993) (holding the claimant "must prove she was totally disabled prior to [the date her insured status expired]"). The agency denied her applications initially and on reconsideration.

On August 16, 2005, Ms. Wilson received a de novo hearing before an administrative law judge (ALJ). The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

Step one requires the claimant to demonstrate that he is not presently engaged in substantial gainful activity. At step two, the claimant must show that he has a medically severe impairment or combination of impairments. At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits. If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work.

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 [residual functional capacity] to perform work in the national economy, given her age, education, and work experience. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and citations omitted; brackets in original).

In his October 12, 2005, decision, the ALJ determined that Ms. Wilson was not presently engaged in substantial gainful activity and that she did have a medically severe combination of impairments, including the following severe impairments: degenerative disc disease of the cervical and lumbar spine, mitral valve prolapse, history of carpal tunnel, depression, personality disorder, somatoform disorder, and methamphetamine abuse. Admin. R., Vol. I at 22. At step three, the ALJ determined that Ms. Wilson's combination of impairments did not meet or equal a listed impairment. The ALJ determined that she retained the RFC to perform a range of light activities and was physically "limited to lifting or carrying 10 pounds frequently and 20 pounds occasionally, sitting about 6 hours in an 8 hour work day, and standing or walking about 6 hours in an 8 hour work day." Id. at 23. The ALJ also determined that Ms. Wilson's mental limitations "include moderate limitations in the ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; interact appropriately with the general public; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes." Id. With this RFC, the ALJ found that Ms. Wilson could return to her past relevant work as a phlebotomist, and that even if she could not return to her past relevant work, there were a significant number of other jobs which she could perform in the national or regional economy. The ALJ therefore held that Ms. Wilson had not been under a disability from the alleged date of onset to the date of the ALJ's decision. The Appeals Council denied review, making the ALJ's decision the Commissioner's final decision.

On appeal, Ms. Wilson raises five points of error: (1) the ALJ failed to properly consider her psychotic disorder in determining her RFC; (2) the ALJ failed to properly consider her myofascial pain syndrome in determining her RFC; (3) the ALJ erroneously evaluated her credibility; (4) the ALJ improperly evaluated several treating source opinions; and (5) the district court erred by failing to remand the case to the agency for consideration of new and material evidence.

Under the Social Security Act, the Social Security Administration (SSA) is authorized to pay disability insurance benefits and Supplemental Security Income to persons who have a "disability." A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy."

Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B)). "Under the Social Security Act, a claimant is disabled if she is unable to do `any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months.'" Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)) (ellipsis in original). 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. See 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) (quotation omitted). We review the district court's denial of Ms. Wilson's motion for remand for an abuse of discretion. See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990).

I.

Ms. Wilson's has a long history of drug addiction and mental illness. Her first argument is that the ALJ failed to properly consider her psychotic disorder in determining her RFC. Her psychotic disorder was first diagnosed on October 27, 2003, by Cathy Shaffer, a therapist for High Plains Mental Health Center (High Plains). Admin. R., Vol. I at 376. The diagnosis was confirmed by evaluations performed by Dr. Susan Harper at High Plains on December 18, 2003; January 13, 2004; and January 26, 2004. Id. at 371-74. The ALJ did not find her psychotic disorder to be severe at step two of the sequential evaluation. But the ALJ was still required to give consideration to the disorder because, in determining RFC, an ALJ must "consider the limiting effects of all [the claimant's] impairment(s) even those that are not severe[.]" 20 C.F.R. §§ 404.1545(e), 416.945(e); see also S.S.R. 96-8P, 1996 WL 374184, at *5.

Ms. Wilson does not argue that the record shows specific limitations caused by her psychotic disorder that should have been included in the RFC. She instead argues that the decision shows the ALJ ignored her psychotic disorder. She argues that this insufficient consideration is shown by the ALJ's failure to identify which of her limitations were caused by the psychotic disorder, his failure to find the psychotic disorder a severe mental impairment at step two, and his failure to discuss certain evidence concerning the symptoms of her disorder.

When considering mental impairments, the ALJ must properly apply the special technique required by the regulations.

When there is evidence of a mental impairment that allegedly prevents a claimant from working, the ALJ must follow the procedure for evaluating mental impairments set forth in 20 C.F.R. §§ 404.1520a and the Listing of Impairments and document the procedure accordingly. This procedure requires the ALJ to rate the degree of the claimant's functional limitation based on the extent to which the claimants mental impairment(s) interferes with the claimant's ability to function independently, appropriately, effectively, and on a sustained basis. Previously, to record his conclusions, the ALJ prepared a standard document called a Psychiatric Review Technique Form (PRT form) that tracked the listing requirements and evaluated the claimant under the relevant criteria. Now, he is only to document application of the technique in the decision.

Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (quotations, citations, and alterations omitted).

Here the ALJ applied the special technique and rated Ms. Wilson's functional limitations by essentially following the conclusions of Dr. Charles Frantz, a consulting physician, contained in two PRT forms from August 29, 2003, prior to the diagnosis of psychotic disorder.¹ The ALJ found that Ms. Wilson had a severe combination of mental impairments, concluding that "claimant has no restrictions in daily activities, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace without evidence of repeated episodes of decompensation." Admin. R., Vol. I at 22.

In determining Ms. Wilson's RFC, the ALJ tracked the findings in Dr. Franz' Mental RCF Assessment, also from August 29, 2003.² The ALJ included the following mental limitations in the RFC: "moderate limitations in the ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; interact appropriately with the general public; and get along with coworkers or peers without distracting...