F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 10, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TIM OTH Y C . HEINR ITZ,
Plaintiff-Appellant,
v. No. 05-5208
(D.C. No. 04-CV-618-SA J)
JO A NN E B. BA RN HA RT, (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.
Plaintiff-appellant Timothy C. Heinritz appeals from the order entered by
the district court affirming the Social Security Commissioner’s decision denying
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
his application for disability insurance benefits under the Social Security Act.
Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we
affirm.
I.
In a decision issued in A ugust 2003, the administrative law judge (ALJ)
denied plaintiff’s application for benefits at step five of the five-step sequential
evaluation process for determining disability, finding that: (1) plaintiff’s
“impairments of status post right hip replacement; right sensorineural hearing
loss; and a generalized anxiety disorder . . . are severe impairments by Social
Security definition,” Aplt. App., Vol. 2 at 21; (2) plaintiff’s impairments do not
meet or equal any listed impairment under step three of the controlling
regulations, id.; (3) plaintiff’s “impairments limit him to unskilled light level
work activity that does not require more than occasional climbing, balancing,
stooping, kneeling, crouching, or crawling; working in the presence of noise; or
active interaction with the general public,” id. at 23; (4) plaintiff does not retain
the residual functional capacity (RFC) to perform the requirements of his past
skilled w ork as a general manager, marketing director, and operations manager,
id. at 20, 24; but (5) based on the hearing testimony of the vocational expert,
there are multiple unskilled jobs in the regional and national economy that
plaintiff can perform, and the available jobs include ticket taker, cafeteria
attendant, cleaner, bench assembler, and addresser, id. at 24-25.
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In July 2004, the Appeals Council denied plaintiff’s request for review of
the A LJ’s decision. Plaintiff then filed a complaint in the district court. In
September 2005, the magistrate judge, sitting by consent of the parties and by
designation of the district court pursuant to 28 U.S.C. § 636(c), entered an order
and a related judgment affirming the denial of plaintiff’s application for disability
benefits. This appeal followed.
Because the Appeals Council denied review, the ALJ’s decision is the
Commissioner’s final decision for purposes of this appeal. See Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,
“we neither reweigh the evidence nor substitute our judgment for that of the
agency.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799, 800 (10th Cir.
1991). Instead, we review the ALJ’s decision only “to determine whether the
factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied.” Doyal, 331 F.3d at 760.
II.
In this appeal, plaintiff claims that “[t]he State agency review ing experts
diagnosed him as having an organic mental disorder due to alcohol induced
dementia, an affective disorder and a substance abuse disorder.” Aplt. Opening
Br. at 10. He further asserts that the ALJ committed reversible error by:
(1) failing to properly consider and develop the administrative record; (2) failing
to perform a proper step-two evaluation of his alleged impairments; (3) failing to
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properly evaluate the opinions of D r. M allgren, one of his treating physicians;
(4) failing to properly evaluate the credibility of his allegations regarding his
impairments; and (5) failing to perform a proper step-five evaluation.
Plaintiff’s allegations and medical history are set forth in detail in the
ALJ’s decision and the magistrate judge’s order. In particular, we note that the
magistrate judge’s thorough and well-reasoned order contains a detailed summary
of plaintiff’s allegations, his medical history, and the administrative proceedings
below, see Aplt. A pp., Vol. 1 at 18-25, and we will not repeat that summary here.
Having carefully considered the extensive arguments that are set forth in
plaintiff’s appellate briefs, we are also convinced that the ALJ’s denial of
disability benefits is supported by substantial evidence in the administrative
record. Consequently, we do not deem it necessary to address all of the
arguments advanced by plaintiff in this appeal, and only briefly address the
follow ing points.
A. Testimony of the Vocational Expert.
Because there is substantial medical evidence in the record that contradicts
the vocational expert’s testimony, we reject plaintiff’s argument that the ALJ
com mitted reversible error by “fail[ing] to acknowledge the testimony of the VE
that the marked limitation in [his] ability in the domain of concentration,
persistence, or pace precluded competitive work.” Aplt. O pening Br. at 23.
W hile plaintiff is correct that the Psychiatric Review Technique form that was
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prepared and reviewed by the “State agency experts” stated that plaintiff had a
“marked degree of limitation” in maintaining concentration, persistence, or pace,
id. at 21; see also Aplt. App., Vol. 2 at 316, these same experts also submitted a
separate, and more specific, RFC assessment of plaintiff’s ability to perform
work-related mental activities. In the latter document, the state experts concluded
that plaintiff was “Not Significantly Limited” with regard to seventeen of twenty
specific mental activities associated with “Understanding And M emory,”
“Sustained Concentration And Persistence,” “Social Interaction,” and
“Adaptation.” See Aplt. App., Vol. 2 at 320-21. In particular, with regard to
concentration and persistence, the state experts opined that plaintiff was not
significantly limited with regard to “[t]he ability to carry out very short and
simple instructions.” Id. at 320.
In addition, while the state experts found that plaintiff was “M oderately
Limited” with regard to his abilities to: (1) understand, remember, and carry out
detailed instructions; and (2) interact appropriately with the general public, id. at
320-21, these limitations are not inconsistent with the ALJ’s RFC determination,
id. at 22, 23 (limiting plaintiff “to unskilled light level work activity that does not
require . . . active interaction with the general public,” and relying on opinion of
consultative psychologist that plaintiff “could understand and remember simple
instructions; could concentrate and persist on simple tasks; could interact on a
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limited basis with the general public and/or coworkers; and could adapt to the
demands of a simple work environment”).
W e also reject plaintiff’s argument that the ALJ erred by “ignor[ing] the
testimony of the vocational expert witness that [he] could not work with a Global
Assessment of Function of 50 to 55.” Aplt. Opening Br. at 23 (capitalization
modified). To begin with, as the magistrate judge noted, “GAF scores are not
considered absolute determiners of disability.” A plt. App., Vol. 1 at 28. M ore
importantly, however, a GAF score of 51-60 indicates only that a person will have
“moderate difficulty in social or occupational functioning.’” Langley v. Barnhart,
373 F.3d 1116, 1122 n.3 (10th Cir. 2004) (quotation omitted). 1 W e are therefore
not convinced, based on the medical and other evidence in the record before us,
that a G AF score of 50-55 is necessarily inconsistent with the A LJ’s
determination that plaintiff retains the RFC to perform unskilled work. See
20 C.F.R. § 404.1568(a) (defining “[u]nskilled work” as “work which needs little
or no judgment to do simple duties that can be learned on the job in a short period
of time”). In fact, although Dr. Kent, the consultative psychologist, assigned a
GAF score of 50-55 to plaintiff, see Aplt. App., Vol. 2 at 243, Dr. Kent
nonetheless concluded that plaintiff could: (1) “understand and remember simple
to moderately complex [work] instructions”; (2) “concentrate and persist on
1
By contrast, “[a] GAF score of 41-50 indicates . . . serious impairment in
social, occupational, or school functioning.” Langley, 373 F.3d at 1122 n.3.
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simple to moderately complex [work] tasks”; and (3) “adapt to a simple to
moderately demanding work environment,” id. at 242-43. In sum, like the
magistrate judge, we “conclude[] that the ALJ’s conclusion with regard to
Plaintiff’s mental functioning is based upon substantial evidence in the record.”
Id., Vol. 1 at 29. As a result, we “cannot say that the ALJ erred by failing to rely
upon a specific GAF score attributable to Plaintiff.” Id. at 28-29.
B. Development of the Administrative Record.
Plaintiff claims the ALJ erred by failing to order “further
neuropsychological testing.” Aplt. Opening Br. at 25. This argument is without
merit. As explained by the magistrate judge:
Plaintiff specifically asserts that a “Hallstead-Reitan test” should
have been administered to Plaintiff. Plaintiff was referred for a
Psychological Evaluation and did have some testing performed.
[R. at 238]. As a result of that testing, the examiner noted that
Plaintiff had some memory difficulties. The examiner concluded that
rehabilitation could assist Plaintiff and noted that “more extensive
memory or neuropsychological testing may help to determine
whether he is capable of understanding and remembering more than
simple instructions on a day to day basis.” [R. at 242]. This
examiner, which Plaintiff relies in part upon to suggest that the ALJ
failed his duties, suggests that more testing could be ordered to
determine if Plaintiff could retain more information or could improve
more. The examiner did not state that such testing was necessary to
determine Plaintiff’s current impairments.
Aplt. App., Vol. 1 at 29 (emphasis added).
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C. The ALJ’s Step-Tw o Evaluation.
Plaintiff claims the ALJ failed to perform a proper evaluation at step two of
the sequential evaluation process because: (1) “the experts of the State agency
found that [he] suffered primarily from an organic mental disorder”; and (2) he
“clearly has a medically determinable organic mental disorder and the A LJ’s
failure to find it constituted a severe impairment is erroneous.” A plt. Opening Br.
at 29 (citing Aplt. App., Vol. 2 at 307; 20 C.F.R. § 404.1520; and SSR 96-3p at
*2). W e disagree. As noted by the magistrate judge:
An ALJ is required to consider the limitations that a given
impairment has on the claimant’s abilities to work rather than the
label given to a disease or ailment. For example, if a claimant has
diabetes, the ALJ’s focus is on the impairments that result from
diabetes. In this case, the record reveals that the ALJ considered the
mental impairments which were attributed to Plaintiff.
Aplt. App., Vol. 1 at 30.
D. Dr. M allgren.
Plaintiff claims the ALJ failed to properly evaluate the opinions of
Dr. M allgren, one of his treating physicians at the Grand Lake M ental H ealth
Center. Plaintiff’s treating physician argument is not supported by the record, and
we agree with the following analysis of the magistrate judge:
Plaintiff complains that the ALJ did not adequately address the
records of Plaintiff’s treating physicians at Grand Lake M ental
Health. The A LJ first noted that the records by Dr. M allgren were
not consistent with the treatment records submitted from Grand Lake
M ental Health. The ALJ observed that Plaintiff’s records indicated
gradual improvement. The ALJ therefore did not give controlling
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weight to the opinion of Dr. M allgren which is consistent with the
requirements in assessing a treating physician’s opinion.
Plaintiff additionally asserts that the ALJ failed to follow the
remaining factors in analyzing the treating physician’s opinion. The
ALJ noted that Dr. M allgren saw Plaintiff on two occasions in
January and April 2003. The ALJ discussed the nature and extent of
the relationship noting that Plaintiff was seen primarily by a different
doctor, that Plaintiff was described as stable on medication and was
released because he did not meet the criteria for treatment. The ALJ
discussed the remaining medical evidence in the record and noted
Dr. M allgren’s opinion was inconsistent with the treatment notes.
The ALJ noted that much of Dr. M allgren’s opinion was based on
Plaintiff’s subjective comments rather than the treatment notes. The
Court cannot conclude that the ALJ failed to evaluate and give
reasons for giving little weight to the opinion of the treating
physician.
Id. at 34-35.
E. The ALJ’s Credibility and Step-Five Determinations.
W e agree with the magistrate judge that “the ALJ’s [credibility] evaluation
is supported by substantial evidence.” Id. at 35. Specifically, we agree that the
administrative record contains sufficient evidence to support the A LJ’s
“conclusion . . . that the symptoms experienced by the claimant are limiting but,
when compared with the total evidence, not severe enough to preclude all types of
work.” Id., Vol. 2 at 22; see also id. at 25 (finding that “claimant’s testimony is
. . . credible only to the extent consistent with a residual functional capacity for a
wide range of light work”).
W e also reject plaintiff’s argument that “the ALJ failed to perform a proper
evaluation at step 5 of the sequential evaluation process.” Aplt. Opening Br. at
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45 (capitalization modified). First, because w e have concluded that the A LJ’s
step-five finding that plaintiff can perform certain unskilled light jobs is
supported by substantial evidence in the record, we do not need to address
plaintiff’s claim that he should be “limited to sedentary work, [because then] he
grids out.” Id. (quotation omitted). Second, as found by the magistrate judge,
while “Plaintiff additionally assert[ed] that none of the hypotheticals [submitted
to the vocational expert] included mental limitations caused by Plaintiff’s organic
brain impairment,” A plt. App., Vol. 1 at 36, plaintiff failed to adequately support
this argument in the proceedings before the district court, id. (noting that plaintiff
failed to “specify the limitations that should have been included”).
Finally, we will not consider the arguments that plaintiff has made in this
appeal in an attempt to demonstrate that “[t]he ALJ’s own hypothetical precludes
work for Claimant.” Aplt. Opening Br. at 46. Plaintiff failed to present the latter
arguments to the district court, and there are no compelling reasons to excuse his
waiver. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent
compelling reasons, we do not consider arguments that were not presented [by a
social security claimant] to the district court.”); Berna v. Chater, 101 F.3d 631,
632-33 (10th Cir. 1996) (stating that “waiver principles developed in other
litigation contexts are equally applicable to social security cases,” and that
“waiver may result from the disability claimant’s failure to . . . preserve issues in
the district court”).
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The judgment of the district court is AFFIRMED.
Entered for the Court
W ade Brorby
Circuit Judge
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