Raymond v. Astrue

FILED
United States Court of Appeals
Tenth Circuit

December 15, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

RONALD E. RAYMOND,

Plaintiff-Appellant,

v. No. 09-2094
(D.C. No. 1:08-CV-00515-KBM)
MICHAEL J. ASTRUE, (D. N.M.)
Commissioner of Social Security,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

Ronald E. Raymond appeals the district court’s order affirming the

Commissioner’s denial of his application for supplemental security income (SSI)

payments. Discerning no reversible error, we affirm.

I

In his application for SSI payments, Mr. Raymond alleged he was disabled

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and unable to work due to degenerative lumbar and thoracic disc disease, a rotator

cuff injury, an old fracture of the left hand, arthritis, and other maladies. To

establish his disability, Mr. Raymond had to show that he suffered from

an inability to engage in any substantial gainful activity and a physical
or mental impairment, which provides reason for the inability. 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.

Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citations and

quotation marks omitted). The Social Security Commissioner concluded that

Mr. Raymond failed to meet this threshold and so denied his initial benefits

application, as well as his later application for reconsideration.

Mr. Raymond then requested and received a hearing before an

administrative law judge (ALJ) where both he and a vocational expert testified.

The ALJ, however, agreed with the Commissioner that Mr. Raymond was not

entitled to benefits. The ALJ found that, although Mr. Raymond could not

perform his past work, he retained the residual functional capacity to perform

other jobs such as sales attendant, office helper, and rental clerk — all jobs

available in significant numbers in the national economy. After the Appeals

Council denied review, the ALJ decision became the final decision of the

Commissioner. Mr. Raymond sought review of this decision in the district court,

where the parties agreed to proceed before a magistrate judge. After that court

2
declined to disturb any aspect of the Commissioner’s decision, Mr. Raymond

brought this appeal.

II

We may review the Commissioner’s “decision only to determine whether

the correct legal standards were applied and whether the factual findings are

supported by substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d

788, 790 (10th Cir. 2006). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. It requires

more than a scintilla, but less than a preponderance.” Cowan v. Astrue, 552 F.3d

1182, 1185 (10th Cir. 2008) (internal quotation marks omitted). Mr. Raymond

believes the decision in this case warrants reversal under these standards for three

reasons that merit discussion. We examine each in turn.

A

Mr. Raymond argues that the ALJ improperly assessed the opinion of his

treating physician, Dr. Steve Petrakis. More specifically, Mr. Raymond argues

that the ALJ improperly found that his March 2004 visit to Dr. Petrakis

represented his last visit to the physician. Mr. Raymond alleges he saw Dr.

Petrakis twice after March 2004 — in July and October 2004 — and the ALJ

failed to consider records from these visits. An initial difficulty with this

argument is that substantial evidence exists in this record to support the ALJ’s

finding. The evidence Mr. Raymond cites of the July visit does not indicate

3
which physician of the various ones in the practice saw him. The evidence

Mr. Raymond cites pertaining to the putative October visit does not show that

Dr. Petrakis actually saw Mr. Raymond but suggests only that the two spoke by

phone. Given the presence of substantial, if not undisputed, evidence in the

record to support the ALJ’s finding, we are unable to disturb it.

Mr. Raymond relatedly argues the ALJ should have but failed to give at

least “some” weight to Dr. Petrakis’s October 2004 notes. But the record before

us reveals that the ALJ expressly did afford some, albeit “little,” weight to

Dr. Petrakis’s opinions and his October 2004 notes. App. Vol. II at 17. To the

extent that Mr. Raymond might be understood as contesting the ALJ’s decision to

decline to give the physician’s opinion controlling weight, we likewise see no

reversible error. An ALJ may decline to give controlling weight to the opinion of

a treating physician where he “articulate[s] specific, legitimate reasons for his

decision,” Cowan, 552 F.3d at 1189, finding, for example, the opinion

unsupported by “medically acceptable clinical and laboratory diagnostic

techniques” or inconsistent with other substantial evidence in the record, see

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). The ALJ’s opinion

in this case does just these things. For example, the ALJ noted that Dr. Petrakis’s

very brief October 2004 notations simply recite Mr. Raymond’s complaints; that

those notes do not appear to be based on a physical examination; that they provide

little analysis of Mr. Raymond’s physical limitations; and that they are

4
inconsistent with other medical evidence in the record largely based on physical

examinations of Mr. Raymond. In light of all this, the ALJ determined that, while

Dr. Petrakis’s opinion was worthy of some weight, it did not merit controlling

weight because it was “brief, conclusory, and unsupported by objective medical

findings.” App. Vol. II at 17. Each of these findings is supported by substantial

evidence in the record. 1

B

Mr. Raymond next contends that the ALJ’s decision to discount his own

credibility was improper. We have explained, however, that “[c]redibility

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

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

Barnhardt, 395 F.3d 1168, 1173 (10th Cir. 2005). At the same time, we have

indicated that “findings as to credibility should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

Id.

The ALJ’s finding was so linked in this case. The ALJ expressly stated

1
Mr. Raymond argues that the magistrate judge erroneously offered
additional, post-hoc reasons to support the ALJ’s conclusion about the weight due
Dr. Petrakis’s opinions when, for example, he suggested that Dr. Petrakis’s brief
October notes might not merit deference because they do not constitute a full-
blown “medical opinion.” We need not decide this. Our review of the ALJ’s
decision reveals that it is fully supported on its own terms for the reasons we have
given.

5
that he reached his credibility assessment only after a careful consideration of the

record, and he then proceeded to offer extensive reasons for his credibility

finding, reciting and relying on a great deal of record evidence:

I have also considered other factors, including the claimant’s medical
treatment and his daily activities . . . A consideration of these
additional factors does not change my conclusion that the claimant can
perform a limited range of light work . . . The claimant testified that he
was taken off of stronger pain medication (i.e., Percocet) and was put
on Celebrex. However, he testified that sometimes Celebrex does not
help his pain. He uses a brace two or three times per week. He last saw
Dr. Petrakis in March 2004. He currently is treated by First Choice
Community Healthcare and sees a chiropractor. He testified that he
does not have enough money to go to the chiropractor very often. He
has also attended physical therapy but stated that he did not think that
physical therapy was helpful . . . . The claimant has been able to ride
a motorcycle, even in winter. He testified that he drove a motorcycle
10 minutes ago; he was on it for 15 minutes to get to the hearing. He
can ride a motorcycle up to 50 miles without stopping. He is able to
ride his motorcycle from Albuquerque to the Acoma Laguna Hospital.
He also testified that he cooks and uses the microwave on an average
day. In addition, he washes dishes, makes the bed, and sweeps the
kitchen and vacuums his 55 by 15 foot trailer once per week.
Therefore, the claimant can perform a limited range of light work as set
forth in my hypothetical question to the vocational expert. Although
there is evidence of degenerative thoracic and lumbar disc disease, there
is no evidence of any spinal stenosis or neurological dysfunction.
Although Dr. Petrakis was of the opinion that the claimant’s medical
conditions interfered with his ability to work, the claimant had not seen
Dr. Petrakis since March 2004. Although there is evidence of an old
fracture in his left hand, a history of a right rotator cuff tear, and
inflammatory arthritis in his hands, there in no evidence that these
impairments, alone or in combination, would preclude occasional
handling, fingering, and feeling. Finally, the claimant is able to engage
in a wide range of household chores and can ride a motorcycle.

App. Vol. I at 70-72 (Magistrate Memorandum Opinion and Order quoting the

ALJ Decision). Given the depth and extent of the ALJ’s analysis in light of the

6
record as a whole, we agree with the district court that we may not second-guess

his credibility determination in this case.

C

Even assuming the ALJ’s assessment of his physical limitations was

accurate, Mr. Raymond argues that the ALJ erroneously concluded that he was

able to obtain gainful employment for two reasons. First, Mr. Raymond argues

that the ALJ erroneously relied on testimony by a vocation expert that he was

physically able to work as a “sales attendant” or an “office helper.” According to

Mr. Raymond, the requirements of these jobs exceed his physical abilities, even

as found by the ALJ. Second, Mr. Raymond argues that a third job the vocational

expert said he could perform — that of “rental clerk” — doesn’t exist in

“significant” enough numbers to qualify as a meaningful option for him. See

42 U.S.C. § 423(d)(2)(A).

We need not resolve Mr. Raymond’s first challenge. Even assuming

without deciding that he is unable to work as a sales attendant or office helper,

there is no colorable dispute that substantial record evidence supports the ALJ’s

conclusion that he can work as a rental clerk. Accordingly, the only question we

must decide is whether or not that job exists in significant enough numbers.

It is undisputed that there are some 1.34 million rental clerk jobs available

in the national economy and 385 in the New Mexico economy. It is also

undisputed that we have found far fewer than 1.34 million jobs in the national

7
economy to qualify as “significant.” Cf. Stokes v. Astrue, 274 F. App’x 675, 684

(10th Cir. 2008) (finding only 152,000 jobs in the national economy sufficient).

Neither does Mr. Raymond dispute that 1.34 million rental clerk jobs in the

national economy is a legally “significant” number.

Instead, Mr. Raymond argues only that significant numbers of a prospective

job “must exist in the regional economy” before an ALJ can avoid a disability

finding, and emphasizes that only 385 rental clerk jobs exist in New Mexico.

Aplt. Opening Brief at 16 (emphasis added). The problem is that the controlling

statutes, federal regulations, and case law all indicate that the proper focus

generally must be on jobs in the national, not regional, economy. In 42 U.S.C.

§ 423(d)(2)(A), for example, Congress prescribed that “[a]n individual shall be

determined to be under a disability only if . . . [he cannot] engage in any other

kind of substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area . . . . ‘[w]ork which exists in

the national economy’ means work which exists in significant numbers either in

the region where such individual lives or in several regions of the country.” Id.

(emphasis added); see also 20 C.F.R. § 416.966(c) (“We will determine that you

are not disabled if your residual functional capacity and vocational abilities make

it possible for you to do work which exists in the national economy.”); Jensen v.

Barnhart, 436 F.3d 1163, 1168 (10th Cir. 2005) (“The Commissioner met her

step-five burden of proving that there are sufficient jobs in the national economy

8
for a hypothetical person with Jensen’s impairments.” (emphasis added)); Grogan

v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (noting that the claimant must

show his impairments prevent him from performing his past work, and then the

burden shifts to the Commissioner to show that the claimant can perform work in

the national economy); Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004)

(noting that jobs need only exist within “the regional or national economy”

(emphasis added)).

In fact, the Sixth Circuit in Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir.

1999), explicitly stated that “[t]he Commissioner is not required to show that job

opportunities exist within the local area.” In that case the vast majority of the

jobs available closest to the claimant were about 70 miles from her home, id. at

291-92, but the court, after examining the same statutes and regulations

applicable to this case, concluded that “the number of jobs that contributes to the

‘significant number of jobs’ standard looks to the national economy — not just a

local area,” id. at 292. We see no reasoned basis on which we could reach a

different result in this case. 2

2
Mr. Raymond cites Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992),
and argues that the ALJ should have engaged in a multi-factor analysis to assess
whether there are significant jobs in the regional economy. But this is not what
Trimiar requires. Like our other cases, the court in Trimiar indicated that the
relevant test is either jobs in the regional economy or jobs in the national
economy. Id. at 1330-32. In Trimiar the focus was on jobs in the regional
economy because the vocational expert in that case testified only to the number of
(continued...)

9
 ***

The judgment of the district court is affirmed.

Entered for the Court

Neil M. Gorsuch
Circuit Judge

2
(...continued)
available jobs in the regional economy. Because the number of such jobs was
between 650 and 900, and because this circuit has “never drawn a bright line
establishing the number of jobs necessary to constitute a ‘significant number,’”
the court turned to the multi-factor analysis to help it resolve the question
whether 650 to 900 jobs is a “significant” number. See id. at 1330. Trimiar does
not hold that only regional jobs are relevant or that a court must engage in a
factoral analysis when the number of jobs relevant available is, as here (1.34
million), much larger.

10