Welch v. Colvin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 9, 2014

Elisabeth A. Shumaker
Clerk of Court
THERESA WELCH,

Plaintiff - Appellant,

v. No. 13-1195
(D.C. No. 1:12-CV-00818-CMA)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of the Social Security
Administration,

Respondent - Appellee.

ORDER AND JUDGMENT*

Before PHILLIPS, PORFILIO, and BALDOCK, Circuit Judges.

Theresa Welch appeals the district court’s order affirming the Commissioner’s

decision denying her application for disability insurance benefits. We have

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

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
 I. BACKGROUND

Ms. Welch applied for disability benefits in 2008 for right shoulder and neck

impairments stemming from a work accident in 2005. She alleged an onset date of

January 1, 2005, and was eligible through the date she was last insured for benefits,

March 31, 2008. Her application was denied. Ms. Welch then requested a hearing

before an administrative law judge (“ALJ”), which was held in 2010.

Following the hearing, the ALJ found Ms. Welch had the severe impairments

from a disc bulge at C5 and C6 vertebrae, right shoulder pain, thrombocytosis,

depression, and drug and alcohol abuse. Based on these impairments, the ALJ found

that Ms. Welch had the residual functional capacity (“RFC”) to perform light work

with certain limitations: she could only occasionally push and pull with her upper

extremities, needed to avoid reaching overhead, and was limited to simple and

unskilled work with one-, two-, or three-step instructions.

Despite finding that Ms. Welch’s limitations prevented her from performing

her past work at step four of the five-step evaluation process, the ALJ found at step

five that she could perform other work that exists in significant numbers in the

economy. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (describing

five-step sequential process). Thus, the ALJ concluded that Ms. Welch was not

disabled. Ms. Welch appealed, but the Appeals Council denied review and the

district court affirmed the ALJ’s decision. Ms. Welch now appeals to this court,

arguing that the ALJ (1) failed to properly determine her RFC and (2) improperly

-2-
erred at step five by relying on the vocational expert’s answer to the ALJ’s

hypothetical.

II. DISCUSSION

“We review the Commissioner’s decision to determine whether the ALJ’s

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

correct legal standards were applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161

(10th Cir. 2012) (internal quotation marks omitted). “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) (internal quotation marks omitted). In determining whether

substantial evidence supports the agency’s decision, we examine the record as a

whole but we do not reweigh the evidence. Id.

A. RFC Determination

1. Medical Evidence

Ms. Welch first argues that the ALJ failed to explain the weight she gave to

the medical opinions of Drs. Sramek, Schulze, and Young. “Medical opinions are

statements from . . . medical sources that reflect judgments about the nature and

severity of your impairment(s), including your symptoms, diagnosis and prognosis,

what you can still do despite impairment(s), and your physical or mental

restrictions.” 20 C.F.R. § 404.1527(a)(2). However, as the Commissioner points out,

none of the physicians Ms. Welch identifies provided medical opinions about her

-3-
that, given her impairments, the ALJ was required to weigh. Rather, each physician

simply diagnosed her impairments and in some cases recommended treatment for

them.

For example, Dr. Sramek stated Ms. Welch had right neck pain, “numbness

and weakness in [her] C5 and C6 distributions,” and recommended surgery as a result

of those symptoms. Aplt. App. Vol. I at 225. Dr. Sramek also noted Ms. Welch’s

reported pain and her psychological issues with mood changes, sleep disturbance, and

difficulty coping. Dr. Young noted her neck and shoulder pain, as well as her high

platelet count (thrombocytosis) that required cancelling her scheduled neck surgery.

Dr. Schulze likewise noted her thrombocytosis and a rotator cuff tear, and advised

surgery. None of the physicians, however, opined on Ms. Welch’s limitations

resulting from her impairments except that Drs. Sramek and Schulze excused

Ms. Welch from working for short periods of time.1 As to the impairments

themselves, the ALJ appropriately addressed each one and incorporated limitations

based on them into her RFC finding. We therefore find no error in the ALJ’s not

weighing the physicians’ “opinions.” See Cowan v. Astrue, 552 F.3d 1182, 1189

(10th Cir. 2008) (finding doctor’s statement providing no information about the

nature and severity of the claimant’s physical limitations or the activities he could

still perform was not a medical opinion).

1
Specifically, Dr. Sramek wrote that Ms. Welch could not work from March
2005 through May 2005, and Dr. Schulze wrote that she could not work in June 2005.

-4-
 We also find no merit in Ms. Welch’s contention that the ALJ ignored her need

for surgery when she assessed her RFC. On the contrary, the ALJ twice noted that

Ms. Welch had been scheduled for surgery but that the surgery was postponed due to

her elevated platelet count. Aplt. App. Vol. I at 20, 23. We are thus satisfied that

the ALJ properly considered the need for surgery when she gave “careful

consideration of the entire record” in determining Ms. Welch’s RFC. Id. at 23.

2. Credibility Assessment

Ms. Welch additionally argues that the ALJ improperly relied on treatment

gaps and inconsistencies between the medical evidence and her stated activities of

daily living to find that the alleged intensity of her stated limitations was not fully

credible. But the medical record indeed shows gaps in Ms. Welch’s treatment

records, specifically from August 2007 until September 2008, which Ms. Welch

does not dispute. The record also shows that Ms. Welch testified she could do light

yard work, light chores, light cooking, grocery shop, drive, and visit her family

despite her impairments. Lack of treatment and a claimant’s daily activities are both

proper considerations as part of a credibility determination. See Barnett v. Apfel,

231 F.3d 687, 690 (10th Cir. 2000); Wilson, 602 F.3d at 1146. Thus, the ALJ

adequately tied her credibility finding to substantial evidence in the record. Given

the deference we accord credibility determinations that are supported by substantial

evidence, see Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1302 (10th Cir. 2011),

we must conclude the ALJ’s credibility determination was not improper.

-5-
 3. Combined Effects of Impairments

Ms. Welch additionally contends the ALJ failed to consider the combined

effects of all her non-severe impairments with her severe impairments. She

specifically points to such non-severe impairments as gastrointestinal problems,

chronic pain, a hernia, chest pain, post-traumatic stress disorder (“PTSD”), and

suicidal tendencies. However, Ms. Welch does not identify how any of these

impairments affected her functioning during the time she claims she was disabled,

either individually or in combination with each other. See 20 C.F.R. § 404.1512(c).

Further, there was no other medical evidence that these complications restricted her

ability to work. Thus, even if the ALJ did err, such error is harmless because

Ms. Welch fails to identify—and we do not discern—any resulting prejudice.

4. Mental Impairments

Ms. Welch argues the ALJ should have ordered a consultative psychological

evaluation because her suicide attempt in 2010 should have indicated to the

Commissioner a “reasonable possibility of the existence of a disability.”

See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (holding that an ALJ

should order a consultative evaluation when a reasonable possibility of the existence

of a disability exists and the evaluation would materially assist resolving the issue of

disability). An ALJ is obligated to order a consultative evaluation only when the

medical sources on record are insufficient to allow the ALJ to make a disability

determination. 20 C.F.R. § 404.1517. Here, the ALJ noted Ms. Welch possessed a

-6-
record that “was fully developed with records from treating sources,” thus allowing

the ALJ to make a disability determination without the use of an evaluation.

Aplt. App. Vol. I at 18. The record included numerous psychological diagnoses and

treatments, including for depression and anxiety, which were both accounted for in

the ALJ’s RFC. Further, the ALJ also reasoned that an evaluation conducted over

two years after the date last insured would “shed little light” on Ms. Welch’s status

during the relevant time period. Aplt. App. Vol. I at 17. It is evident that the ALJ

possessed record evidence sufficient to make a disability determination and would

not have been materially assisted by a consultative evaluation.

Ms. Welch also contends that the Commissioner erred by failing to assess her

PTSD. She claims that, although her PTSD was not diagnosed until two years after

her date last insured, the origins of her PTSD go back to sexual assaults that

occurred in 2007 and her accident in 2005. She asserts that the Commissioner

improperly rejected the opinion of Dr. Robbins, who diagnosed her with PTSD in

2010. Dr. Robbins’s August 2010 PTSD diagnosis was not before the ALJ but was

submitted to the Appeals Council, which denied review. The Commissioner,

meanwhile, argues that Ms. Welch’s argument is unavailing because Dr. Robbins’s

opinion does not change the weight of the evidence both because it is unreliable or

inaccurate and because there is no evidence Ms. Welch had PTSD before the date

she was last insured. We agree.

-7-
 There is nothing in the record gathered before the date Ms. Welch was last

insured that suggests Ms. Welch suffered from PTSD. While she undoubtedly

suffered from psychological problems such as depression and anxiety, none of the

doctors who evaluated her mental health mentioned anything about PTSD before

2010. It is true Dr. Robbins stated that the “likely beginning effective date” for

Ms. Welch’s limitations, including those induced by PTSD, was August 2006.

Id. at 528. But in the same report, Dr. Robbins wrote that the traumatic event which

caused Ms. Welch’s PTSD did not occur until July 2007, exhibiting an inconsistency

in her opinion. Moreover, Dr. Robbins’s report was not created until two years after

the relevant time period ended (and after the ALJ issued her decision). We may

conclude the Appeals Council erred in denying review based on the new evidence

only if the new evidence provides a basis for changing the ALJ’s decision.

See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Here, given the lack of

more chronologically relevant evidence of PTSD and the fact that the RFC

accounted for Ms. Welch’s mental limitations, we cannot say that the evaluation

required a change in the outcome. The Commissioner was therefore reasonable in

deciding to affirm the ALJ’s findings despite the results of Dr. Robbins’s

psychological evaluation.

B. Step Five

-8-
 At step five of the sequential process, an ALJ is required to consider whether,

given a claimant’s background and RFC, the claimant can perform other work that

exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(g).

Ms. Welch argues that the ALJ was not justified in relying on the vocational expert’s

answers to the ALJ’s hypothetical because the hypothetical did not accurately capture

all of Ms. Welch’s impairments. But we have already affirmed the ALJ’s findings

regarding the nature and extent of Ms. Welch’s impairments in rejecting her

challenges to the ALJ’s RFC determination. And the ALJ’s hypothetical question

included an accurate recitation of Ms. Welch’s limitations. “Because these findings

are adequately reflected in the ALJ’s hypothetical inquiries to the vocational expert,

the expert’s testimony provided a proper basis for adverse determination of this

case.” See Gay v. Sullivan, 986 F.2d 1336, 1340-41 (10th Cir. 1993) (citation

omitted).

The judgment of the district court is affirmed.

Entered for the Court

Gregory A. Phillips
Circuit Judge

-9-