Hunter v. Astrue

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS
April 20, 2009
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

THERESA P. HUNTER,

Plaintiff–Appellant,

v. No. 08-2209
(D.C. No. 1:07-CV-00588-DJS)
MICHAEL J. ASTRUE, Commissioner (D.N.M.)
of Social Security,

Defendant–Appellee.

ORDER AND JUDGMENT*

Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.

Theresa P. Hunter appeals the district court’s order affirming the decision

of the Commissioner of Social Security (“Commissioner”) to deny her application

for social security disability insurance benefits. Exercising jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

I

Before filing the application at issue in this appeal, Hunter had previously

applied for disability insurance benefits, which application was denied on

May 18, 2000. Hunter did not appeal that denial, and therefore res judicata
prohibits reexamination of that final decision. See Brown v. Sullivan, 912 F.2d

1194, 1196 (10th Cir. 1990) (stating that courts have no “jurisdiction to review

the [Commissioner’s] refusal to reopen a claim for disability benefits or

determination [that] such claim is res judicata”). Moreover, the parties

acknowledge that she was last insured for disability purposes on December 31,

2002. Therefore, the issue is whether Hunter was totally disabled between May

19, 2000, (the day after the adjudication on the prior application) and

December 31, 2002. See Hamlin v. Barnhart, 365 F.3d 1208, 1213 (10th Cir.

2004) (noting that the relevant period ran from the day after the adjudication on

the prior application to the last disability insured date); Henrie v. U.S. Dep’t of

Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993) (holding that the

claimant “must prove she was totally disabled prior to [the date her insured status

expired]”).

Hunter claims disability due to myofascial pain syndrome, degenerative

arthritis, and fibromyalgia. She asserts that these conditions cause pain and other

symptoms in her legs, knees, arms, back, neck, and shoulders. Her medical

history indicates that beginning in 1996, William S. Griffis, D.O., treated her for

pain in her back, neck, and right shoulder. In 1999, Terri Weber, M.D., began

treating her for neck, back, shoulder, and knee pain. Dr. Weber diagnosed muscle

spasms and prescribed narcotic pain medications. Dr. Weber continued to treat

Hunter for several years, encompassing the period relevant to this case.

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Beginning in 1999, Hunter also sought treatment for neck, back, wrist, and knee

pain from Steve J. Petrakis, M.D. Like Dr. Weber, Dr. Petrakis also prescribed

narcotic pain medications and continued to treat Hunter during the relevant

period.

In July 2002, Hunter underwent surgical treatment for blood clots. The

surgery was performed by Nathan L. Brightwell, M.D., who continued to treat

Hunter for post-operative problems. Those problems were resolved in the ensuing

months. During her hospitalization, Hunter revealed that she had been receiving

prescription narcotic pain relievers from both Dr. Weber and Dr. Petrakis,

whereupon she consulted with Ronald M. Laub, M.D., about pain management.

Dr. Laub noted back and neck tenderness, and he prescribed methadone to help

Hunter overcome her dependence on narcotics.

In addition to her own doctors, Hunter was evaluated by two physicians

consulting for the Commissioner. The first evaluation was performed in April

2000 by Anthony Caruso, M.D. Upon examination, Dr. Caruso found tenderness

in Hunter’s back, neck, and shoulders. He indicated that she suffered from

fibromyalgia, but found, among other things, that she had “full range of motion

and full strength,” and that she had no sitting restrictions.

The second consulting physician was John Burris, M.D., who examined

Hunter on August 10, 2002. He diagnosed chronic neck, upper back, and bilateral

arm pain, noting that Hunter had no functional deficits and that her neurologic

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exam was normal in the upper extremities. He found “no restrictions from

sedentary duties,” and “[n]o limitation to fine manipulation work.”

An Administrative Law Judge (“ALJ”) initially denied Hunter’s application

for disability benefits on August 29, 2002. Hunter appealed and on February 21,

2006, the district court remanded the case for further proceedings. At the remand,

Hunter was represented by counsel and testified, as did a vocational expert

(“VE”). The ALJ determined that as of December 2002, Hunter had the ability to

perform medium work and could return to her past work as a customer service

representative. After considering Hunter’s medical history and hearing testimony,

the ALJ 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 the

five step process). The district court affirmed.

II

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.”

Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). To

determine whether substantial evidence supports the Commissioner’s decision, we

examine the record as a whole, but do not reweigh the evidence. Id.

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 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)

(quotation omitted). 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.”

42 U.S.C. § 423(d)(1)(A). “The claimant bears the burden of proving a disability

within the meaning of the Social Security Act.” Channel v. Heckler, 747 F.2d

577, 579 (10th Cir. 1984).

In determining whether a claimant is disabled, the Commissioner employs

the familiar five step sequential evaluation process. Fischer-Ross, 431 F.3d at

731 (describing the process). The Commissioner determined at step four that

Hunter was not disabled.

Step four of the sequential analysis . . . is comprised of three
phases. In the first phase, the ALJ must evaluate a claimant’s
physical and mental residual functional capacity (RFC), and in
the second phase, he must determine the physical and mental
demands of the claimant’s past relevant work. In the final
phase, the ALJ determines whether the claimant has the ability
to meet the job demands found in phase two despite the mental
and/or physical limitations found in phase one. At each of
these phases, the ALJ must make specific findings.

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citation omitted).

Before us, Hunter claims that the ALJ made two fundamental errors at step

four. First, Hunter disputes the ALJ’s conclusion that she can perform her past

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relevant work. Specifically, Hunter contends that the ALJ erred (1) in

determining that she could perform medium work, (2) in failing to make findings

regarding the demands of her past work as a customer service representative,

(3) in concluding that her limitations in fingering and manipulation do not prevent

her from performing her past work, and (4) in failing to include sitting restrictions

in a hypothetical question to the VE. Second, Hunter maintains that the ALJ

improperly discounted her claims of pain and subjective complaints by finding

her testimony not credible.

A

Hunter objects to the ALJ’s finding that she retained the RFC to perform

medium work. 1 We need not address this dispute because the parties agree that

Hunter’s past work as a customer service representative fell into the sedentary

category rather than the medium work category. Even if the ALJ should have

concluded that Hunter had an RFC for only sedentary work, she would still be

able to perform her past relevant work. Thus, any error on this point was

harmless. 2 See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)

1
RFC is defined as “the most [a person] can still do despite [his or her
physical and mental] limitations.” 20 C.F.R. § 404.1545(a)(1).
2
Consequently, we do not address Hunter’s argument based on the
combined effect of her blood clots, knee pain, and limitations on her abilities to
stand and walk because that argument challenges only the ALJ’s determination
that she could do medium work.

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(recognizing the appropriateness of harmless error analysis in administrative

cases).

Hunter also alleges that the ALJ’s findings are inadequate because he

described what her past work did not demand, rather than making affirmative

findings as to what physical and mental requirements the work did demand. She

further argues that the ALJ acted impermissibly by adopting the VE’s testimony

on certain points. We do not agree.

The ALJ explicitly found that Hunter’s past work as a customer service

representative did not require the lifting expected for medium work; rather, the

lifting and carrying requirements were less than ten pounds. In addition, the work

required no standing or walking. The ALJ also adopted the VE’s testimony that

Hunter’s description of her work was compatible with the Dictionary of

Occupational Titles (“DOT”) and with his experience, although the work as she

performed it required more use of her fingers than most customer service

representative positions in the national economy. As described in the DOT, the

position would require occasional “fingering.” Finding this argument to be

unsupported by the medical evidence, the ALJ then rejected Hunter’s claim that

her limitations on “fingering” and manipulation precluded her from performing

her past work.

We conclude that the ALJ’s findings relative to the physical and mental

demands of Hunter’s past relevant work are adequate. By adopting the VE’s

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testimony, he did not abrogate his responsibility to make specific findings. See

Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003) (holding it was not

improper for an ALJ to “quot[e] the VE’s testimony approvingly[] in support of

his own findings” because an “ALJ may rely on information supplied by the VE at

step four” (quotation omitted)).

Hunter’s third contention on point is that the ALJ improperly rejected her

claim that she cannot adequately perform the “fingering” and manipulation

required in her past work. She relies on reports regarding such limitations from

Drs. Griffis and Weber. Dr. Griffis’s report, dated September 12, 1996, noted

that Hunter had developed right wrist and arm pain in 1991 that had been treated

successfully in the past, and he referred her to another physician for treatment.

Dr. Weber noted on November 20, 1997, that Hunter reported neck and shoulder

pain.

Hunter also cites to a report by physical therapist Brad Chewakin in

September 1998 noting “significant myofascial irritability in the upper quadrant

right greater than the left.” In addition, she points to a September 1998 diagnosis

of cervical facet syndrome with locking of atlantoaxial joint (cervical vertebrae)

and myofascial pain syndrome, and an April 2000 x-ray showing degenerative

disease of the cervical and lumbar spine.

All of this medical evidence comes from outside the relevant period, May

18, 2000, to December 31, 2002. Such evidence is pertinent only if it illuminates

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the claimant’s condition during the relevant period. None of the medical sources

on which Hunter relies offered an opinion about her “fingering” and manipulation

within the relevant period, whereas Dr. Burris, a consulting physician who

examined Hunter during the relevant period, stated that “[h]er neurologic exam is

completely normal in the upper extremities [and] functionally she has . . . normal

strength, reflexes, and movement.” Based on this record, we conclude that

substantial evidence supports the ALJ’s determination that Hunter was not

prevented by limitations in “fingering” and manipulation from performing her

past work.

It is claimed that the ALJ erred by failing to include Hunter’s sitting

restrictions in a hypothetical question to the VE. Hunter maintains that it was

error for the ALJ to rely on the assessment performed by physical therapist Mary

Bogenschultz-Bonn and on Dr. Burris’s report, neither of which imposed a

restriction on sitting, instead of questioning the VE on this topic. “To the extent

that she is asking this court to reweigh the evidence, we cannot do so. We review

only the sufficiency of the evidence, not its weight; and there was certainly

enough evidence to support the ALJ’s findings.” Oldham v. Astrue, 509 F.3d

1254, 1257 (10th Cir. 2007) (citation omitted). Moreover, the ALJ was not

required to include in a hypothetical question limitations “not accepted by the

ALJ as supported by the record,” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir.

1995), including the sitting limitation urged by Hunter.

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 Accordingly, we conclude that Hunter has failed to carry her “burden of

proving her inability to return to her particular former job and to her former

occupation as that occupation is generally performed throughout the national

economy.” O’Dell v. Shalala, 44 F.3d 855, 860 (10th Cir. 1994) (quotation and

alteration omitted); see Henrie, 13 F.3d at 361 (claimant has burden of proof).

B

Hunter also objects to the ALJ’s finding that her complaints of disabling

pain were not credible. It is well-established that “[c]redibility determinations

are peculiarly the province of the finder of fact.” Kepler v. Chater, 68 F.3d 387,

391 (10th Cir. 1995) (quotation omitted). Even so, “findings as to credibility

should be closely and affirmatively linked to substantial evidence and not just a

conclusion in the guise of findings.” Id. (alteration omitted).

In discrediting Hunter’s hearing testimony, the ALJ relied on her statement

that she had not been addicted to narcotic pain medications during the relevant

period, despite abundant evidence that she was. The ALJ meticulously catalogued

her receipt of prescription pain medications from both Dr. Weber and Dr. Petrakis

during the relevant period. Dr. Petrakis required Hunter to sign a contract with

him on October 7, 2002, whereby she agreed to obtain prescription medications

only from him after he discovered that she was also receiving narcotics from

another physician. In July 2002, Dr. Laub consulted with Hunter for pain

management, noting her “[n]arcotic addictive behavior, physician shopping.” On

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February 25, 2003, Dr. Weber informed Hunter “that one pill a day of Percocet is

all [she] will allow her because of the history of drug addiction.” Hunter did not

list Dr. Petrakis as a treating physician on her disability application, even though

he had treated her since January 1999, nor did she indicate on the application the

medications he had prescribed for her.

We are directed to medical evidence that Hunter has several pain producing

impairments. The ALJ recognized that her impairments were capable of

producing pain. But he gave little weight to the opinions of treating physicians

Weber and Petrakis because neither physician knew that Hunter was receiving

narcotic medications from the other, so “[i]t would have been impossible for the

physicians to fully assess the claimant’s physic[al] condition and complaints

without the knowledge of the drug abuse.” The ALJ determined that during the

relevant period, Hunter “was doctor shopping and not informing physicians of the

care and medications she was receiving from other doctors.” Thus, the ALJ gave

legitimate reasons in his written decision for concluding that the treating

physicians could not assess whether Hunter needed strong medication for severe

pain or whether her requests for prescription medications were based on her

addiction.

Hunter maintains that in evaluating her credibility the ALJ was required to

give “significant consideration” to the opinion of Daniel St. Arnold, M.D. The

ALJ gave no weight to the opinion of Dr. St. Arnold because he did not start

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treating Hunter until three years after her insured status expired, he provided no

specific limitations, and he cited to no specific findings. In addition, Dr. St.

Arnold’s opinion that Hunter was unable to work was based on Hunter’s own

statement, and the ALJ found her not to be credible.

Instead of crediting Dr. St. Arnold’s opinion, the ALJ credited the opinions

of the consulting physicians, Drs. Caruso and Burris, who examined Hunter in

2000 and 2002, respectively. The ALJ noted that “both consultative examiners

found that the claimant was not functionally impaired by the pain,” 3 and properly

explained the weight he gave the medical opinions. See 20 C.F.R. § 404.1527(b),

(d). Thus, the ALJ gave “specific, legitimate reasons for his decision.” Hamlin,

365 F.3d at 1215 (quotation omitted). In sum, based on our review of the record

as a whole, we conclude that the ALJ’s credibility findings are closely and

affirmatively linked to substantial evidence.

3
The ALJ also briefly noted that in 1997 Dr. Griffis found that Hunter was
not motivated to perform strengthening exercises. Hunter maintains this
observation was unfair and incorrect because she did some of the recommended
exercises. We do not analyze this argument because Dr. Griffis’s report is well
outside the covered time period, and this specific point of contention relates to
Hunter’s subjective motivation in 1997, rather than to her physical condition.

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 III

For the reasons stated, the judgment of the district court is AFFIRMED.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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