Norris v. Barnhart

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
September 26, 2006
FO R T H E T E N T H C IR C U IT Elisabeth A. Shumaker
Clerk of Court

M ARY A. NORR IS,

Plaintiff-Appellant,

v. No. 04-7113
(D.C. No. 03-CV-514-W )
JO A NN E B. BA RN HA RT, ( E.D. Okla.)
Com m issioner of the Social Security
Adm inistration,

Defendant-Appellee.

O R D E R A N D JU D G M E N T *

Before O ’B R IE N , H O L LO W A Y , and B A L D O C K , Circuit Judges.

After examining the briefs and appellate record, this panel has determ ined

unanim ously to grant the parties’ request for a decision on the briefs without oral

argum ent. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered subm itted without oral argum ent.

Claim ant M ary A. Norris appeals the district court’s affirm ance of the

Com m issioner’s decision denying her Supplem ental Security Incom e benefits

*
This order and judgm ent is not binding precedent, except under the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 judgm ents; nevertheless, an order
and judgm ent m ay be cited under the term s and conditions of 10th Cir. R. 36.3.
(SSI) under Title XVI of the Social Security Act. W e have jurisdiction over this

appeal pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we reverse.

This appeal is taken from the denial of N orris’s second application for SSI.

On June 27, 2000, the Social Security A dm inistration (SSA) denied her first

application, which had a protective filing date of A pril 12, 2000, and Norris

pursued the claim no further. Aplt. App. at 12. In her second application, which

has a protective filing date of February 18, 2002, Norris alleged disability based

on problems with her feet and back, holes in her stom ach, num bness in her hands

and arm s, allergies, hearing problem s, surgeries, and depression. Id. at 94. The

SSA denied her second application initially and upon reconsideration. At step

five of the five-step sequential evaluation process, see Williams v. Bowen,

844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential process for

evaluating claim s for disability benefits), an administrative law judge (ALJ)

determined that she retained the residual functional capacity (RFC) to perform a

limited range of sedentary work that existed in significant numbers in the regional

and national economies and denied benefits. The Appeals Council denied review ,

m aking the ALJ’s decision the Com m issioner’s final decision. O’Dell v. Shalala,

44 F.3d 855, 858 (10th Cir. 1994).

This court reviews “the Com m issioner’s decision to determ ine whether the

factual findings are supported by substantial evidence in the record and whether

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the correct legal standards were applied.” W atkins v. Barnhart, 350 F.3d 1297,

1299 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Hamlin v.

Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).

On appeal, Norris contends that the ALJ erred when he (1) formulated an

RFC that did not include all of her physical and mental limitations, and (2) failed

to explain the manner in which the vocational expert (VE) deviated from the

Dictionary of Occupational Titles 1 when identifying other jobs that Norris could

perform.

I. E rror in R FC Form ulation

The ALJ found that Norris retained the following RFC:

[S]edentary work: except for work requiring sitting longer than 45
m inutes at a tim e or m ore than occasional stooping, or requiring
kneeling or squatting. The claim ant can perform sim ple, routine
tasks and maintain attention within custom ary tolerances, interact
appropriately with co-workers and supervisors on a superficial level,
and adapt to changes in the work setting.

Aplt. App. at 14. Norris contends that this RFC failed to account for all of her

physical and m ental lim itations.

A . Physical lim itations.

1
U.S. Dep’t of Labor, Em ploym ent & Training Adm in., Dictionary of
Occupational Titles (4th ed. 1991).

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 Norris argues that the RFC assessm ent does not properly account for her

bending and stooping lim itations. She first asserts that the ALJ did not state what

weight, if any, he assigned to the opinion of Dr. Kilgore, a state agency

consultative exam iner, concerning back pain and drainage from an old incisional

hernia repair. She argues that this violates Social Security Ruling (SSR ) 96-6p,

which states that an ALJ “may not ignore” the opinions of state agency medical

and psychological consultants and “must explain the weight given to the opinions

in their decisions.” SSR 96-6p, 1996 W L 374180 at *2. She also contends that

the ALJ should have discussed the effect of bending and stooping on the

incisional drainage, particularly in view of her testim ony that this m ade the

drainage worse. She argues that the ALJ erred by not giving the opinion of her

treating physician, Dr. Hillis, either substantial weight, as required by Frey v.

Bowen, 816 F.2d 508, 513 (10th Cir. 1987), or controlling weight, as required by

20 C.F.R. § 416.927(d)(2). 2 Dr. H illis treated her for a ventral hernia in 1997-98.

Aplt. App. at 219-227.

W e disagree that the ALJ ignored Dr. Kilgore’s opinion. It is apparent that

he relied on it because he reviewed it as part of the medical evidence that

supported his RFC determ ination. Id. at 14. W e also disagree that the ALJ was

2
Although Norris cites to the identical 20 C.F.R. § 404.1527(d)(2) on this
point, w e note that the regulations applicable to her claim for SSI under Title X V I
of the Social Security Act are set forth in 20 C.F.R. Ch. III, part 416. See
20 C.F.R. § 416.101.

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required to state the weight attributed to the opinions of Dr. Kilgore and

Dr. Hillis. An ALJ is required to “review all of the evidence relevant to [a]

claim” and “make findings about what the evidence shows.” 20 C.F.R.

§ 416.927(c). “If all of the evidence we receive, including all m edical opinion(s),

is consistent, and there is sufficient evidence for us to decide w hether you are

disabled, we will m ake our determ ination or decision based on that evidence.” Id.

§ 416.927(c)(1). “If any of the evidence in your case record, including any

m edical opinion(s), is inconsistent with other evidence or is internally

inconsistent, we will weigh all of the evidence and see whether we can decide

whether you are disabled based on the evidence we have.” Id. § 416.927(c)(2).

It is clear from the foregoing regulations that, if all of the medical evidence

is consistent, the ALJ is not required to state the weight attributed to each

opinion, and SSR 96-6p’s requirement to state the weight given to the opinions of

state agency consultants is inapplicable. Sim ilarly, the ALJ need not determ ine

whether a treating physician’s opinion is entitled to either controlling or

substantial weight, or w eigh it against other consistent, supportive evidence.

Here, the ALJ determ ined Norris’s RFC, then stated that the “medical

evidence provides ample support for this conclusion.” Aplt. App. at 14. He went

on to describe the medical records of her physical im pairm ents in detail, all of

which are consistent in that they identify only m inimal problem s associated with

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her ongoing complaints of incisional drainage. 3 For example, Dr. Hillis observed

prior to her 1997 hernia operation that she “has a draining sinus tract.” Id. at 220.

After the operation, he observed that she “has a sm all area of skin which is not

healing. She indicates that she has had pain and drainage since her repair. . . .

The wound is w ell healed other than a 1-2 cm area centrally where there is

superficial denuding. . . . [N]o draining sinus tract can be identified.” Id. at 219.

In 2002, Dr. Kilgore observed that Norris had “a m inim al amount of drainage

from a sm all incision” in her abdom en. Id. at 121. The ALJ’s failure to state the

specific weight he gave to the opinions of Dr. Kilgore or Dr. Hillis, therefore, was

not error. Nothing in these opinions suggests that the ALJ should have

formulated a more restrictive RFC. 4

W e also find no error in the ALJ’s failure to m ention Norris’s testim ony

that bending increases the pain and drainage from her incisional wound. An ALJ

3
Even Norris states that “there is clearly no contradictory m edical evidence
which would justify rejecting or ignoring the opinions of doctors who had treated
Norris in emergency room s and hospitals.” Aplt. Br. at 16.
4
Norris’s self-reported history of chronic back pain m ade worse by bending
and stooping is contained in the “History of Present Illness” section of
Dr. Kilgore’s report. Aplt. App. at 119. Therefore, this is not an opinion that the
ALJ was required to address. See 20 C.F.R. § 416.927(a)(2) (“M edical opinions
are statements from physicians and psychologists or other acceptable medical
sources that reflect judgm ents about the nature and severity of your
im pairm ent(s), including your sym ptom s, diagnosis and prognosis, what you can
still do despite im pairm ent(s), and your physical or m ental restrictions.”).
Contrary to the Com m issioner’s position, Dr. Hillis’s records do contain “medical
opinions” because he m akes statem ents that reflect judgm ents about Norris’s
sym ptom s. See id.

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is not required to address every piece of evidence. Clifton v. Chater, 79 F.3d

1007, 1009-10 (10th Cir. 1996). “W hen the ALJ does not need to reject or weigh

evidence unfavorably in order to determ ine a claim ant’s RFC, the need for

express analysis is weakened.” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.

2004). Here, Norris testified that “the more I m ove the more this [pointing to her

wound] gets sore . . . [i]t starts oozing m ore and more, and it will start having red

streaks shoot out of it.” Aplt. App. at 43. She also testified that in 1997-98 her

doctors told her “not to be lifting or straining anything to aggravate it.” Id. at 37.

This testim ony does not describe disabling pain or any specific lim itations

on m ovement or functioning that would require a more restrictive hypothetical

than the one the ALJ posed to the vocational expert, which limited her to

sedentary work and only occasional forw ard stooping or bending, id. at 51. The

ALJ based the physical lim itations portion of his RFC determ ination on the

reports of Dr. Kilgore and Dr. Hillis, each of whom identified only m inim al

problems with drainage from her incisional hernia repair and no functional

lim itations. Norris has pointed to no other evidence that suggests a m ore

restrictive RFC. Therefore, the ALJ did not need to reject her testim ony or weigh

it unfavorably in order to determ ine her RFC or find her not disabled at step five

of the sequential evaluation process, and his failure to m ention it is not error.

Norris contends that the ALJ erred by failing to address m edical records

from the W adley Regional M edical Center. W e disagree. Those records, id. at

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222-27, contain inform ation about her ventral hernia operation in 1997. The ALJ

addressed this operation in his discussion of the records of Dr. Hillis, who

perform ed the procedure. The additional records m erely recite the details of her

procedure and do not underm ine the accuracy of the ALJ’s RFC finding.

Likewise, we find no error in the ALJ’s failure to discuss certain records

from M cCurtain M em orial Hospital to which Norris directs our attention: a

diagnosis of acute m yofascial strain and acute lower back pain, id. at 165, and an

x-ray report indicating m ild narrowing of the L5-S1 intervertebral disc space, id.

at 168. Those records, which contain m inimal inform ation, are consistent with

Dr. Kilgore’s opinion that, among other severe im pairm ents, she has chronic low

back pain, which the A LJ considered. Therefore, the A LJ did not need to discuss

them . See Howard, 379 F.3d at 947. Nothing in the M cCurtain records

contradicts the RFC found by the A LJ.

B . M ental lim itations.

Norris asserts that the ALJ failed to indicate the weight he attributed to the

opinion of examining state agency consultant Dr. Otero, failed to mention two

evaluations perform ed by Dr. Sm allwood, Ph.D, a non-examining state agency

consultant, and failed to account in his RFC determ ination for all the lim itations

Dr. Otero and Dr. Sm allwood found. Although w e find that the A LJ did address

Dr. Sm allwood’s evaluations, we agree that he failed to account for them fully in

his RFC determ ination.

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 Dr. Otero opined that Norris could m aintain socially appropriate behavior,

apparently despite his diagnosis of panic disorder w ith agoraphobia. Id. at 140.

The ALJ noted this opinion twice in his decision, id. at 15, 16-17, and it is

evident that he relied on it in determ ining Norris’s RFC. Dr. Sm allwood

concluded that Norris w as not significantly limited in her ability to m aintain

socially appropriate behavior, but that she was m oderately 5 limited in her ability

to interact appropriately with the general public. Id. at 144.

The abilities to interact appropriately with the general public and to

m aintain socially appropriate behavior are listed on the M ental Residual

Functional Capacity Assessm ent form com pleted by Dr. Sm allwood as separate

com ponents of social interaction, id. at 144, and thus describe two separate

m easurements of m ental functioning. The ALJ, therefore, did not need to weigh

the opinions of D r. O tero and Dr. Sm allw ood because they are not inconsistent.

However, he erred by failing to address Dr. Sm allwood’s public-interaction

lim itation in his hypothetical to the VE and in his RFC determ ination. See

Clifton, 79 F.3d at 1010 (“[I]n addition to discussing the evidence supporting his

decision, the ALJ also m ust discuss the uncontroverted evidence he chooses not to

rely upon, as well as significantly probative evidence he rejects.”). This failure is

5
W e note that, in his decision, the ALJ m isstated this lim itation as m arked
rather than m oderate. Aplt. App. at 15. Although it does not affect our analysis,
it renders the ALJ’s om ission of this lim itation from the RFC even more puzzling.

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significant because som e, if not all, of the jobs identified by the VE appear to

require interaction with the general public. Those jobs m ight have been excluded

if the public interaction lim itation had been included in Norris’s RFC, which

m ight have affected the ALJ’s determ ination at step five of the five-step

sequential evaluation process.

II. D eviation from the D ictionary of O ccupational Titles

Norris argues that the ALJ erred when he failed to explain the manner in

which the VE deviated from the Dictionary of Occupational Titles (DOT) when

identifying jobs that she could perform based on her sedentary RFC. W e agree.

W e have held that an “ALJ m ust investigate and elicit a reasonable

explanation for any conflict between the [DOT] and expert testim ony before the

ALJ m ay rely on the expert’s testim ony as substantial evidence to support a

determ ination of nondisability.” Haddock v. Apfel, 196 F.3d 1084, 1091

(10th Cir. 1999). In Haddock, we provided two examples of a “reasonable” or

“valid” explanation for the conflict between VE testim ony and the DOT: (1) “the

job the VE is testifying about is not included in the [DOT], but is docum ented in

som e other acceptable source”; and (2) “a specified num ber or percentage of a

particular job is perform ed at a lower RFC level than the [DOT] shows the job

generally to require.” Id. at 1091-92.

In response to our holding in Haddock, the SSA issued SSR 00-4p. See

Rescission of Social Security Acquiescence Ruling 00-3(10), 65 Fed. Reg. 75758,

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75758 (D ec. 4, 2000) (discussing the relationship of SSR 00-4p, issued that sam e

day, to Haddock). SSR 00-4p requires an ALJ to resolve conflicts between the

D O T and a V E’s testimony “by determining if the explanation given by the VE

. . . is reasonable and provides a basis for relying on the VE . . . testim ony rather

than on the D O T inform ation.” SSR 00-4p, 2000 W L 1898704, at *2.

Here, the VE stated that the DOT listed cashier II in the light exertional

category, whereas the “Bureau of Labor Statistics in the 2000 census identifies

this job with these numbers existing at the sedentary level as well as the light

exertion level.” Aplt. App. at 53. This explanation is sim ilar to the second

explanation we noted in Haddock. See Haddock, 196 F.3d at 1091-92. After

confirm ing that the number of cashier II jobs the VE identified was only at the

sedentary level, the ALJ admitted that he did not “know enough about the Bureau

of Labor Statistics to ask a follow-up question.” Aplt. App. at 53. This comm ent

indicates that he accepted the V E’s explanation without determining if there was a

basis for relying on it, as required by SSR 00-4p. 6 Therefore, the explanation was

6
Because it appears that the VE’s source may have been a publication of
som e sort, the explanation m ay have been rendered reasonable if the ALJ
determ ined that the source was a reliable publication. See SSR 00-4p, 2000 W L
1898704, at *2 (stating that reasonable explanations include those based on
inform ation in reliable publications other than the DOT). W e do not suggest that
a reasonable explanation m ust identify a specific source or be based on a reliable
publication, only that, in this case, the ALJ’s lack of familiarity with the source
on which the VE based his explanation prevented him from m aking the required
reliability determ ination.

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not reasonable, and the ALJ was not entitled to rely on it as substantial evidence

in support of his determ ination of nondisability, see Haddock, 196 F.3d at 1091. 7

The district court determ ined that the ALJ’s failure to elicit a reasonable

explanation from the V E w as not reversible error because the ALJ identified tw o

other jobs, surveillance system m onitor (700 to 1000 jobs regionally and 65,000

to 85,000 nationally) and food and beverage order taker (600 jobs regionally and

125,000 nationally), that exist in significant num bers. Aplt. A pp. at 279-80.

Based on our conclusion that the ALJ did not address Dr. Sm allwood’s opinion

properly, we decline to affirm the A LJ’s decision on this basis. The A LJ’s

treatment of Dr. Sm allwood’s opinion m ay affect Norris’s RFC, which in turn

m ay affect her ability to perform one or both of those jobs. Additionally, it is

unclear from the decision whether he found that the num bers of each of those

jobs, standing alone, constituted a significant num ber within the meaning of

42 U.S.C. § 423(d)(2)(A ). Given the fairly sm all num ber of those two jobs, it

m ay be necessary for the ALJ to give consideration to the factors that should

direct an ALJ’s resolution of the significant num ber inquiry. See Trimiar v.

Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992). Consideration of these factors

7
W e note that, in his decision, the ALJ erroneously stated that there was no
deviation between the VE’s testim ony and the DOT. Aplt. App. at 18. Because
we conclude that the ALJ failed to elicit a reasonable explanation from the VE at
the hearing, we need not reach his additional failure to “explain in the
determ ination or decision how he . . . resolved the conflict.” SSR 00-4p,
2000 W L 1898704, at *4.

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m ay be particularly important in view of the ALJ’s finding that Norris cannot sit

for m ore than forty-five minutes at a tim e, which may preclude her from driving

long distances to work.

C onclusion

In sum m ary, we conclude that the ALJ applied the correct legal standards

in determ ining the physical lim itations on Norris’s RFC, and those lim itations

were supported by substantial evidence. However, he applied the incorrect legal

standards in determ ining the mental lim itations on Norris’s RFC and in relying on

the V E’s testim ony concerning the cashier II job. On remand, the A LJ must

address Dr. Sm allwood’s opinion concerning the limitations on Norris’s ability to

interact with the general public. The ALJ also m ust elicit a reasonable

explanation for the conflict between the VE’s testim ony and the DOT concerning

the exertional level of the cashier II jobs, unless Dr. Sm allwood’s opinion alters

the RFC and the VE’s testim ony concerning whether N orris can perform that job.

He also should explain in his decision how he resolved that conflict.

The judgm ent of the district court is R E V E R S E D , and the case is

R E M A N D E D to the district court with directions to remand the case to the

agency for further proceedings consistent with this O rder and Judgm ent.

Entered for the Court

W illiam J. Holloway
Circuit Judge

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