Boucher v. Astrue

FILED
United States Court of Appeals
Tenth Circuit

April 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

AMANDA L. BOUCHER,

Plaintiff-Appellant,

v. No. 09-3139
(D.C. No. 6:08-CV-01070-JTM)
MICHAEL J. ASTRUE, Commissioner (D. Kan.)
of Social Security,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before KELLY, BALDOCK, and HOLMES, Circuit Judges.

Amanda L. Boucher appeals from an order of the district court affirming

the Commissioner’s decision denying her application for Social Security benefits.

We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and we

affirm.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 I. Background

Ms. Boucher filed an application for Disability Insurance Benefits on

October 10, 2005, alleging that she became disabled on May 10, 2003. The

agency denied her application initially and on reconsideration. At her request,

Ms. Boucher received a de novo hearing before an administrative law judge

(ALJ). The ALJ determined that Ms. Boucher was severely impaired due to

chronic pain syndrome, osteoarthritis, right shoulder impingement, hypertension,

irritable bowel syndrome, and hypothyroidism. He also found that she had a

non-severe knee disorder and a non-severe depressive disorder. The ALJ

concluded, however, that Ms. Boucher did not have any impairment or

combination of impairments that equaled any impairment listed in 20 C.F.R. Part

404, Subpart P, Appendix 1 and that she had the residual functional capacity to

perform sedentary work. Although the ALJ found that Ms. Boucher could not

return to her past work, he determined that she could perform a significant

number of jobs in the national economy. As a result, the ALJ denied

Ms. Boucher’s application for benefits, concluding that she was not disabled at

step five of the analysis. See Williams v. Bowen, 844 F.2d 748, 75052 (10th Cir.

1988) (explaining five-step process for evaluating claims for disability benefits).

The Appeals Council denied review, making the ALJ’s decision the

Commissioner’s final decision. Ms. Boucher appealed the ALJ’s decision to the

district court and that court affirmed the ALJ’s decision. This appeal followed.

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 II. Discussion

“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.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). On appeal, Ms. Boucher argues that the ALJ erred in assessing

her residual functional capacity (RFC), and in determining that she could perform

other work at step five.

A. The RFC Determination

After considering all of the record evidence, the ALJ made the following

RFC determination:

[T]he claimant is restricted by arthritis in the hands and spine and by
her shoulder impairment to sedentary work, or work which requires
lifting up to 10 pounds on an occasional basis, but lifting no more
than nominal weight on a frequent basis, sitting up to 6 hours of an
8-hour day, and standing and/or walking up to 2 hours of an 8-hour
day. The claimaint has nonexertional limitations precluding more
than occasional reaching, handling, or fingering with the right upper
extremity due to her shoulder impingement and cervicalgia. The
claimant must avoid exposure to temperature and humidity extremes.
She must also avoid exposure to vibration and to work hazards such
as unprotected heights or being around dangerous moving machinery
due to medication side effects.

Admin. R. at 20.

Ms. Boucher asserts that the ALJ erred in making her RFC determination

because he erroneously evaluated (1) her mental impairment; (2) her

hypothyroidism; (3) her pain and credibility; and (4) the opinion of her treating

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physician. In making the RFC assessment, an ALJ considers how an impairment,

and any related symptoms, may cause physical and mental limitations that affect

what a claimant can do in a work setting. 20 C.F.R. § 404.1545(a)(1). The RFC

represents “the most [a claimant] can still do despite [her] limitations.” Id. For

the following reasons, we conclude that the ALJ did not err in assessing

Ms. Boucher’s RFC.

1. Mental Impairment

Ms. Boucher argues that the ALJ erroneously evaluated her mental

impairment. Although she includes this argument in the section of her brief

challenging the ALJ’s step four RFC determination, she does not articulate how

this alleged error affected that determination. Instead, she appears to be

challenging the ALJ’s step two determination that her mental impairment is not

severe. See Aplt. Br. at 11-16. An impairment is “not severe if it does not

significantly limit your physical or mental ability to do basic work activities.”

20 C.F.R. 404.1521(a).

The ALJ explained that “[m]ental disorders are evaluated by their effects

on an individual’s daily activities, social functioning, and concentration,

persistence, and pace, and any resulting episodes of decompensation.” Admin. R.

at 17. He then considered Ms. Boucher’s testimony and her medical records in

evaluating each of these areas. For example, the ALJ noted that Ms. Boucher was

“independent in living arrangements, travel, and shopping,” and “[s]he maintains

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a household for her family, which includes teenaged stepchildren, and does not

require reminders for self care or medication.” Id. at 18. The ALJ therefore

concluded that Ms. Boucher “exhibits no more than mild restriction in activities

of daily living.” Id. The ALJ further determined that Ms. Boucher did not

exhibit more than mild difficulty maintaining social functioning or maintaining

concentration, persistence, or pace and that there was no evidence of repeated

episodes of extended decompensation. See id. at 19. Although the ALJ noted that

Ms. Boucher had seen a psychologist, Dr. Hertzler, who had assigned her a Global

Assessment of Functioning (GAF) score of 55, 1 the ALJ discounted that score

because it did not correspond to the essentially normal findings in the narrative

portion of Dr. Hertzler’s evaluation. Because the evidence showed only mild

limitations in mental functioning, the ALJ found that Ms. Boucher did not have a

severe mental disorder. Ms. Boucher challenges this finding, focusing on the

ALJ’s consideration of Dr. Hertzler’s report.

Dr. Hertzler performed a one-hour consultative psychological evaluation on

June 20, 2006. In his report, he stated that Ms. Boucher was on-time for the

meeting, and that she was verbal and appropriate throughout the session. He also

described her as gregarious and friendly, although he did note that she explained

1
A GAF score of 51-60 indicates “[m]oderate symptoms,” or “moderate
difficulty in social, occupational, or school functioning.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (Text
Revision 4th ed. 2000) at 34.

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later in the session that she acted that way to cover up her feelings and issues. He

indicated that she appeared of average intelligence, her mood was good, her

insight was “quite good” and she showed no signs of psychosis. Admin. R. at

275. He noted that Ms. Boucher had described a troubled childhood, including

sexual abuse. He reported that Ms. Boucher was responding well to medication,

but she wanted assistance in dealing with how her past abuse affected her recent

remarriage. Dr. Hertzler’s initial diagnostic impression was that Ms. Boucher had

a moderate major depressive disorder, a posttraumatic stress disorder, a history of

abuse, and a current and past year GAF score of 55.

Ms. Boucher did not return to see Dr. Hertzler after her initial appointment

because she testified she did not want to “face those [painful] issues,” and it was

“easier to keep it all locked in than to let it out.” Id. at 325. Other than this one

visit, there is no evidence that Ms. Boucher sought treatment for her allegedly

severe mental impairment. As the ALJ correctly noted, Dr. Hertzler’s GAF score

appeared inconsistent with Dr. Hertzler’s essentially normal description of

Ms. Boucher from the appointment. The ALJ’s conclusion that Ms. Boucher’s

mental impairment was not severe is supported by substantial evidence in the

record, including Ms. Boucher’s testimony about her daily activities and level of

functioning.

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 2. Hypothyroidism

Ms. Boucher next argues that the ALJ erred in evaluating her

hypothyroidism because he did not include any limitations consistent with that

condition in her RFC. Although the ALJ concluded that Ms. Boucher’s

hypothyroidism was a severe impairment, he noted that it had been under

adequate control with medication. This conclusion is supported by the record

evidence.

Ms. Boucher was diagnosed with hypothyroidism in June 2005 and she

began taking Synthroid at that time to regulate her thyroid levels. She had some

problems with edema related to her hypothyroidism in the first few weeks after

her initial diagnosis, but her doctor increased her Synthroid dose and there were

no reported problems with edema after that time. She had a follow-up

appointment with her endocrinologist, Dr. Youssef Hassan, in January 2006. He

noted that her last visit had been in July 2005 and he had to adjust her medication

in between visits. Her labs were essentially normal in January 2006, although

with a slightly elevated TSH so Dr. Hassan modified her Synthroid dose again.

There are no further visits with Dr. Hassan in the record and no apparent changes

in her medication.

At a June 2006 appointment with Dr. Joseph Luinstra, he noted that her

hypothyroidism had been stable. Id. at 288. At an August 2006 visit with

Dr. Luinstra, he noted that her TSH was normal from May 31. Id. at 285.

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Ms. Boucher confirmed that her thyroid had been doing well at an October 4,

2006 appointment, although she complained of fatigue and wanted to have her

levels checked at that time. Id. at 284. At two subsequent visits on October 10,

2006 and November 14, 2006 she denied excessive fatigue. See id. at 278, 282. 2

Although Ms. Boucher’s Synthroid dose had to be periodically adjusted

after her hypothyroidism was diagnosed in June 2005, that fact does not refute the

ALJ’s conclusion that her condition was adequately controlled by medication,

which is supported by the record evidence. 3 Because Ms. Boucher’s

hypothyroidism was generally under control with medication, the ALJ was not

required to include any limitations from that condition in her RFC.

2
Ms. Boucher argues that the October 16, 2006 comment where she denied
excessive fatigue was made when she was visiting the clinic to have her knee
evaluated and therefore her comment more likely pertained to her fatigue level in
relation to her knee injury as opposed to her overall fatigue level. We disagree.
As the district correctly court noted in its order:

Dr. Luinstra’s notes segregate specific findings as to Boucher’s knee
in one section of his report. The statement as to the lack of fatigue
appears in a separate, general section of the report which is titled
“Constitutional” and also includes observations that Boucher denied
“change in appetite, weight loss, or diet change.”

R. Vol. 1 at 180 (quoting Admin. R. at 282).
3
Ms. Boucher now argues that the ALJ also erred by failing to address any
limitations in her RFC for the extended period of time when her hypothyroidism
was undiagnosed. See Aplt. Br. at 19-20. Because Ms. Boucher did not make this
argument in the district court, see R. Vol. 1 at 22-24, we will not consider it for
the first time on appeal. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

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 3. Pain and Credibility

Although the ALJ determined that Ms. Boucher’s impairments could

reasonably be expected to produce her alleged symptoms, the ALJ concluded that

her statements concerning the intensity, persistence and limiting effects of her

symptoms were not entirely credible. Ms. Boucher asserts that the ALJ

erroneously evaluated her credibility and symptoms of pain. “Credibility

determinations are peculiarly the province of the finder of fact, and we will not

upset such determinations when supported by substantial evidence.” Kepler v.

Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted).

The ALJ properly considered objective and subjective factors and gave

supporting reasons for his credibility determination. See id; see also 20 C.F.R.

§ 404.1529 (discussing how ALJ evaluates symptoms such as pain). The ALJ

noted that the examination findings by Ms. Boucher’s physicians have been

essentially negative since December 2005; that Ms. Boucher was able to

accomplish most daily activities, including driving, household chores, cooking,

shopping, and visiting; and that Ms. Boucher’s impairments were successfully

treated with medication. Despite Ms. Boucher’s argument to the contrary, the

ALJ did acknowledge and consider the fact that Ms. Boucher was diagnosed with

a pain syndrome. Admin. R. at 21. But the ALJ also indicated that the evidence,

including Ms. Boucher’s reports to her doctors, showed that her pain was fairly

well controlled with medication. See id.

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 The ALJ next discussed Ms. Boucher’s functional capacity evaluation

(FCE) in which the physical therapist described Ms. Boucher’s behavior as

inconsistent and self-limiting. The ALJ noted that the objective findings from the

FCE did not correlate with Ms. Boucher’s performance during functional testing.

The ALJ further referenced medical evidence documenting visits from 2002,

2003, 2005 and 2006 in which no swelling was reported, which contradicted

Ms. Boucher’s report of severe shoulder swelling with even the most minimal

activity. The ALJ also discussed contradictions between Ms. Boucher’s testimony

at the hearing in regards to her pain and functional limitations with information

she reported to the physical therapist during her FCE. After considering all the

evidence, the ALJ ultimately concluded that the claimant was only partially

credible because of the “totality of inconsistencies regarding objective findings

and [Ms. Boucher’s] testimony” as well as the “contradictions between

[Ms. Boucher’s] testimony and her reports to medical sources.” Id. at 23. We

conclude that the ALJ’s credibility determination is supported by substantial

evidence.

4. Treating Physician

Finally, Ms. Boucher argues that the ALJ erred in evaluating the opinion of

her treating physician, Dr. Vello Kass. The ALJ gave controlling weight to

Dr. Kass’s recommendation that Ms. Boucher should be limited to sedentary work

and should avoid repetitive use of her right upper extremity. But the ALJ did not

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give controlling weight to Dr. Kass’s recommendation that Ms. Boucher would do

best with part-time work. The ALJ determined that Dr. Kass’s recommendation

for part-time work was based on Ms. Boucher’s self-report, which the ALJ found

not reliable. Ms. Boucher argues that it was error for the ALJ not to give

controlling weight to all of Dr. Kass’s opinion.

Ms. Boucher’s initial argument is that the ALJ’s characterization of

Dr. Kass’s opinion is factually erroneous. She contends the record does not

support the conclusion that Dr. Kass’s opinion about part-time work was based on

her self-report. But the medical records from Dr. Kass do support the ALJ’s

characterization. For example, in his examination report from September 9, 2003,

Dr. Kass notes that Ms. Boucher “feels she cannot work a 12 hour shift,” see id.

at 172-73, and then on September 18, 2003, Dr. Kass limits Ms. Boucher to

working four to six hours a day, see id. at 171. Similarly, in his examination

report from June 14, 2004, he notes that Ms. Boucher “said she is not able to do

her regular work,” see id. at 165, and he concludes his report by stating “[s]he

would probably do best with just part-time work,” id. at 164. There are no

independent observations by Dr. Kass that would support a conclusion that

Ms. Boucher could only work part-time.

Relying on McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002),

Ms. Boucher next argues that it was error for the ALJ to reject a treating source

opinion on the basis of the ALJ’s evaluation of the claimant’s credibility. First,

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we note that the ALJ did not “reject” Dr. Kass’s opinion. Rather, the ALJ

conducted the Watkins analysis 4 to determine what weight should be given to the

opinion and ultimately concluded that the part of Dr. Kass’s opinion

recommending part-time work should not be given “substantial weight.” Admin.

R. at 23-24. As the district court correctly noted,

[this] case is therefore unlike McGoffin, where an ALJ had refused to
consider the report of a treating physician based on the ALJ’s
subjective, “expressed doubt” that the physician had actually signed
the report, even though—as the Court of Appeals pointed out— there
was additional testimony from other witnesses, that the physician
agreed with the report . . . . Thus, the court in McGoffin was
addressing a case of outright rejection of a medical report, based
only [on] rank speculation as to its authorship. Here, the ALJ
conducted a proper credibility analysis and reached a permissible
conclusion that the claimant was less than fully credible. It was not
error for the ALJ to then use this conclusion as one factor among
several in reaching a secondary finding that Dr. Kass’s opinion
should be given less than controlling weight.

R. Vol. 1 at 182-83.

Ms. Boucher argues also that the other reasons the ALJ gave for giving less

weight to Dr. Kass’s opinion were erroneous. We again refer to the sound

reasoning of the district court:

The ALJ correctly noted that the opinion by Dr. Kass restricting her
to part-time work is not otherwise corroborated by other medical
sources, was grounded on the subjective statements of a claimant
who has otherwise been found to be less than fully credible, and was

4
See Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003)
(explaining factors for ALJ to consider when determining the appropriate weight
to give to a treating physician’s opinion).

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 premised on an observation—that full-time work “seems to stress her
too much,” [Admin. R. at 162], which was a psychological
conclusion outside the orthopedic surgeon’s expertise. Boucher
suggests that the stress reference in Dr. Kass’s letter was physical
stress, and thus within his area of expertise. Read in context, the
stress in the report appears to be psychological in nature, with Dr.
Kass deferring to conclusions offered by the pain specialist,
Dr. Goel.

Id. at 182. We therefore agree with the district court’s conclusion that the ALJ

did not err in declining to give controlling weight to all facets of Dr. Kass’s

opinion. 5

B. The Step Five Determination

Ms. Boucher asserts the ALJ erroneously found that she could perform

other work at step five of the sequential evaluation process. She argues the

agency did not provide evidence of a “significant” number of jobs that she could

perform. But Ms. Boucher focuses her argument on the jobs that are available in

her local region when the proper inquiry is whether a significant number of jobs

exist in the national economy. See 20 C.F.R. §§ 404.1560(c), 404.1566(a).

5
Ms. Boucher also contends that the ALJ had a duty to recontact her treating
physician. We disagree. The ALJ properly recognized that the duty to recontact
a treating physician occurs when the evidence submitted is inadequate. See
Admin. R. at 24. The ALJ concluded, however, that the records submitted by
Dr. Kass were adequate for consideration but that they were not persuasive in
showing that Ms. Boucher could not engage in full-time employment. See id.
This reasoning is consistent with our decision in White v. Barnhart, 287 F.3d 903,
908 (10th Cir. 2002).

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 When the ALJ concludes that a claimant cannot perform her past work, he

must then decide whether a claimant can adjust to other work considering her

RFC and other vocational factors. “Any other work (jobs) that [a claimant] can

adjust to must exist in significant numbers in the national economy (either in the

region where [the claimant lives] or in several regions in the country).” Id.

§ 404.1560(c)(1). The regulations expressly provide that: “It does not matter

whether-- (1) Work exists in the immediate area in which [the claimant lives];

(2) A specific job vacancy exists for [the claimant]; or (3) [The claimant] would

be hired if [she] applied for work.” Id. § 404.1566(a). Based on the testimony of

the Vocational Expert, the ALJ found that Ms. Boucher could work as either a

charge account clerk, with 190,390 jobs in the national economy, 2,000 in

Kansas, and 190 in the local region; or a call out operator with 79,400 jobs in the

national economy, 550 in Kansas, and 30 in the local region. Ms. Boucher has

not demonstrated that the ALJ erred in concluding that there were a significant

number of jobs she could perform in the national economy.

The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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