FILED
United States Court of Appeals
Tenth Circuit
February 4, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
VICTORIA FLAHERTY,
Plaintiff-Appellant,
v. No. 06-1521
(D.C. No. 05-cv-01053-WDM)
MICHAEL J. ASTRUE, Commissioner (D. Colo.)
of Social Security,
Defendant-Appellee.
ORDER
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge and
TYMKOVICH, Circuit Judge.
The Commissioner has filed a motion to publish the order and judgment
previously issued on October 3, 2007. The motion is GRANTED. The published
opinion is filed nunc pro tunc to that date, and a copy is attached.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
October 3, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
VICTORIA FLAHERTY,
Plaintiff-Appellant,
v. No. 06-1521
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 05-cv-01053-WDM)
Submitted on the briefs: *
Frederick W. Newall, Colorado Springs, Colorado, for Plaintiff-Appellant.
Troy A. Eid, United States Attorney, Kurt J. Bohn, Assistant United States
Attorney, Laura Ridgell-Boltz, Special Assistant United States Attorney, Social
Security Administration, Office of the General Counsel, Region VIII, Denver,
Colorado, Deana R. Ertl-Lombardi, Regional Chief Counsel, of Counsel, Yvette
G. Keesee, Deputy Regional Chief Counsel, of Counsel, for Defendant-Appellee.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge and
TYMKOVICH, Circuit Judge.
BRORBY, Senior Circuit Judge.
Plaintiff Victoria Flaherty appeals the district court’s order upholding the
Commissioner’s denial of her application for social security disability insurance
benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
Ms. Flaherty alleges disability since March 5, 2002, due to complications
from an on-the-job injury in November 2001 in which she was caught in the
closing doors of an elevator. She was previously found to be disabled based on
an October 1996 application. In 2000, her disability ended. She received a
post-secondary education and then worked as a medical assistant and a
receptionist. She does not assert that her present claim relates back to her
previous disability.
Ms. Flaherty contends that the following conditions have rendered her
disabled: migraine, degenerative joint disease, fibromyalgia, pain syndrome,
limitations in the use of her upper extremities, sleep disorder or sleep apnea,
affective disorder, chronic depression, obesity, diabetes, and peripheral
neuropathy. An administrative law judge (ALJ) held a hearing at which
Ms. Flaherty, her neighbor, and a vocational expert testified. The ALJ
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determined that Ms. Flaherty retained the residual functional capacity (RFC) to
perform her past relevant work as a receptionist. Accordingly, he denied benefits
at step four of the five-part sequential evaluation process. See Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (describing five steps).
The Appeals Council denied Ms. Flaherty’s request for review, making the
ALJ’s decision the final decision of the Commissioner. Jensen v. Barnhart,
436 F.3d 1163, 1164 (10th Cir. 2005). The district court affirmed the
Commissioner’s decision. Ms. Flaherty now appeals to this court, asserting that
(1) the ALJ did not properly assess her RFC because he did not find that her
migraines were severe, (2) the ALJ failed to consider the combined impact of all
of her impairments, (3) the ALJ failed to develop the record to establish the onset
date of her disabling migraines, and (4) the ALJ erred in finding that she could
return to her past relevant work as a receptionist.
The parties do not dispute that the date Ms. Flaherty was last insured for
disability benefits was December 31, 2002. Her last day of work was March 5,
2002. Therefore, she must establish disability between March 5, 2002 and
December 31, 2002, the “relevant period.” See Henrie v. United States Dep’t of
Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993) (stating claimant must
establish onset of disability prior to date insured status expired).
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Legal Framework
We review the Commissioner’s decision to ascertain whether it is supported
by substantial evidence in the record and to evaluate whether he applied the
correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. We do not reweigh the evidence or retry the case, but we “examine the record
as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Id. at 1262.
In this context, “disability” requires both an “inability to engage in any
substantial gainful activity” and “a physical or mental impairment, which
provides reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002)
(internal quotation marks omitted). The impairment must be a “‘medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months . . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C.
§ 423(d)(1)(A)).
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Migraine Evidence
We first address Ms. Flaherty’s claim that the ALJ erred in finding that her
migraines were not severe. She relies on a report dated December 7, 2002,
prepared by Dr. Van de Graaff following a consultative evaluation, as well as her
own reports to various medical providers that headaches were among her
complaints. Dr. Van de Graaff stated that Ms. Flaherty had “limitations in her
ability to hold down gainful employment secondary to her recurrent and severe
migraines, which are not optimally treated at this time.” R. Vol. I, at 273.
The ALJ gave no weight to Dr. Van de Graaff’s opinion that Ms. Flaherty’s
migraines were disabling because he did not have a treating relationship with her,
he based his opinion on a single, subjective report given to him by Ms. Flaherty,
and his opinion was not supported by the evidence of record. We conclude that
the ALJ’s reasons for not crediting Dr. Van de Graff’s opinion are in accordance
with the governing regulation and case law. See 20 C.F.R. § 404.1527(d) (listing
factors to be considered when “deciding the weight [to be given] to any medical
opinion”); White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001) (stating
sufficient reasons to disregard physician’s opinion included lack of support for
findings, opinion was inconsistent with other medical opinions, and treatment
relationship with claimant was relatively brief).
The ALJ considered both Ms. Flaherty’s reports to medical sources during
the relevant period and her testimony at the hearing. R. Vol. I, at 54. He
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concluded that her claims of “incapacitating migraines [were] not credible to the
extent and severity alleged during the relevant period.” Id. He noted that none of
her treating sources diagnosed her with migraine syndrome and she had not been
prescribed medication for migraine. These were appropriate factors for assessing
credibility. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (discussing
factors to evaluate credibility). Moreover, “the mere presence of a condition is
not sufficient to make a step-two [severity] showing.” Williamson v. Barnhart,
350 F.3d 1097, 1100 (10th Cir. 2003). To the extent Ms. Flaherty claims she
could not afford treatment for her migraines, the record indicates that she had
health insurance during at least part of the relevant period, R. Vol. I, at 188
(claimant reported that she had insurance as of July 2002), and she did not testify
during the hearing that a lack of finances was the reason she did not receive
treatment for her migraines. Therefore, we conclude that substantial evidence
supports the ALJ’s determination that Ms. Flaherty’s migraines were not a severe
impairment. We note that even though he did not find this to be a severe
impairment, the ALJ nevertheless considered her symptoms of headaches in his
RFC determination. Id. at 54.
Combination of Impairments
Ms. Flaherty also argues that the ALJ failed to consider the combined
impact of all of her impairments. She further maintains that the ALJ did not
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accord enough weight to her fibromyalgia and that he placed undue weight on the
opinion of a State agency physician who did not examine her.
At step four, the ALJ must consider whether the claimant’s “impairment or
combination of impairments prevents [her] from performing [her] past work.”
Grogan, 399 F.3d at 1261 (quotation omitted); accord 20 C.F.R. § 404.1545(e).
The ALJ stated that he considered all of her symptoms in assessing her RFC.
R. Vol. I, at 55. “[O]ur general practice, which we see no reason to depart from
here, is to take a lower tribunal at its word when it declares that it has considered
a matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Furthermore, the ALJ’s discussion of the evidence and his reasons for his
conclusions demonstrate that he considered all of Ms. Flaherty’s impairments.
The non-examining physician’s opinion is an acceptable medical source,
which the ALJ was entitled to consider. See 20 C.F.R. § 404.1513(a)(1).
Ms. Flaherty asks us to reweigh the non-examining physician’s opinion and the
effect of her fibromyalgia. “[O]ur limited scope of review precludes this court
from reweighing the evidence or substituting our judgment for that of the
[Commissioner].” Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495,
1500 (10th Cir. 1992). Because the record reflects that the ALJ considered
Ms. Flaherty’s impairments in combination, we will not disturb his determination.
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Duty to Develop Record
Ms. Flaherty next contends that the ALJ failed to develop the record to
establish the onset date of her disabling migraines. In a social security disability
case, the claimant bears the burden to prove her disability. Hawkins v. Chater,
113 F.3d 1162, 1164 (10th Cir. 1997). Disability hearings are nonadversarial,
however, and the ALJ has a duty “to ensure that an adequate record is developed
during the disability hearing consistent with the issues raised.” Id. (quotation
omitted). “This duty to develop the record pertains even if the claimant is
represented by counsel.” Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir.
1993). “Ordinarily, the claimant must in some fashion raise the issue sought to be
developed which, on its face, must be substantial. Specifically, the claimant has
the burden to make sure there is, in the record, evidence sufficient to suggest a
reasonable possibility that a severe impairment exists.” Hawkins, 113 F.3d at
1167 (citations omitted). If she does so, then the ALJ’s duty to order a
consultative examination arises. Id. “Isolated and unsupported comments by the
claimant are insufficient, by themselves, to raise the suspicion of the existence of
a nonexertional impairment.” Id.
Ms. Flaherty argues that the ALJ’s duty to develop the record arose from
the “conflict or ambiguity in the record” concerning whether she had been
diagnosed with migraines or whether she had been treated for them. Aplt. Op. Br.
at 12. This is not the standard. The ALJ was not required to develop the record
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because Ms. Flaherty failed to adduce evidence of a reasonable possibility that
her migraines were a severe impairment.
Ms. Flaherty also claims the ALJ should have considered Dr. Setty’s April
2003 records and migraine diagnosis. She points to no opinion, however, relating
her April 2003 condition to the relevant period—March 5, 2002 to December 31,
2002. Therefore, this evidence did not create a duty to develop the record.
Cf. Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir.
1990) (noting that physician may provide retrospective diagnosis of condition, but
evidence of actual disability during insured period is required).
RFC Determination
Finally, Ms. Flaherty claims that the ALJ’s RFC determination was flawed
because it did not take into account Dr. Van de Graaff’s manipulative limitations.
She claims she could not perform the frequent handling required of the
receptionist position. The ALJ rejected Dr. Van de Graaff’s limitations on
handling and grasping because the limitations were not only contrary to the other
evidence in the record, but also contrary to Dr. Van de Graaff’s own examination
findings. As discussed above, these were legitimate reasons for rejecting Dr. Van
de Graaff’s opinion. Accordingly, we find no error.
Conclusion
The judgment of the district court is AFFIRMED.
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