FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 20, 2015
Elisabeth A. Shumaker
Clerk of Court
JIMMY DALE CARVER,
Plaintiff - Appellant,
v. No. 14-5056
(D.C. No. 4:12-CV-00614-CVE-TLW)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.
Jimmy Dale Carver appeals from an order of the district court affirming the
Commissioner’s decision denying his application for supplemental security income
(SSI) 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Carver sought SSI benefits due to back pain and depression. After his
application was denied initially and on review, he had a hearing before an
administrative law judge (ALJ), who issued a written decision. At step two of the
five-step sequential evaluation process described in 20 C.F.R. § 416.920(a)(4), the
ALJ determined that Carver had several severe impairments: “back pain . . . ; mood
disorder, not otherwise specified; history of substance abuse, in remission;
personality disorder, not otherwise specified (antisocial features)[;] and reduced
visual acuity in the left eye.” Aplt. App., Vol. II at 24-25 (boldface omitted). At step
three, the ALJ found that none of Carver’s severe impairments met or equaled a
disabling impairment described in the Listings, 20 C.F.R. Pt. 404, Subpt. P, App. 1.
As relevant to the issues in this appeal, the ALJ found at step three that Carver did
not met the “paragraph B” criteria of several adult mental disorder Listings because
he had only mild difficulties in activities of daily living and moderate difficulties in
social functioning and concentration, persistence, or pace.
The ALJ then found that Carver retained the residual functional capacity
(RFC) for light and sedentary work and that although he could not “interact with the
public more than occasionally,” he could “understand, remember, and carry out
simple instructions in a work-related setting” and could “interact with co-workers
and supervisors, under routine supervision.” Aplt. App., Vol. II at 29. The ALJ
further found that Carver could “remain attentive and responsive in a work-setting.”
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Id. Because Carver had no past relevant work for step-four purposes, the ALJ made a
dispositive finding at step five based on a vocational expert’s (VE) testimony that a
hypothetical person with the aforementioned RFC could perform other jobs that exist
in significant numbers in the national economy, such as electronics assembler,
housekeeper, semi-conductor assembler, and clerical mailer. The Appeals Council
denied review, and the district court affirmed. Carver appeals.
DISCUSSION
Our task in this appeal is limited to determining whether substantial evidence
supports the agency’s factual findings and whether the agency applied the correct
legal standards. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). We cannot “reweigh
the evidence” or “substitute our judgment for that of the agency.” Id. (internal
quotation marks omitted).
On appeal, Carver argues that the ALJ improperly accounted for moderate
limitations in his ability to (1) accept instructions and respond appropriately to
criticism from supervisors and (2) maintain concentration, persistence, or pace. We
address the issues in order.
1. Accepting instructions/responding to supervisor criticism
Dr. Janice Smith, a nonexamining consultant from the State Disability
Determination Services (DDS), completed a Mental Residual Functional Capacity
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Assessment (MRFCA). In Section I of the MRFCA, “Summary Conclusions,”
Dr. Smith checked boxes indicating that Carver has moderate limitations in his
ability to (1) understand and remember detailed instructions; (2) carry out detailed
instructions; (3) interact appropriately with the general public; and (4) accept
instructions and respond appropriately to criticism from supervisors. Aplt. App.,
Vol. II at 237-38. In Section III of the MRFCA, the “Functional Capacity
Assessment,” she stated that Carver can “perform simple tasks with routine
supervision,” “relate to supervisors and peers on a superficial work basis,” “relate
superficially to the general public on a limited basis,” and “adapt to a simple work
situation.” Id. at 239.
Carver claims that although the ALJ’s RFC finding (and the corresponding
hypothetical to the VE) accounted for the first three moderate limitations set out in
Section I of Dr. Smith’s MRFCA, the finding that he could “interact with co-workers
and supervisors, under routine supervision” did not adequately account for the fourth
Section I moderate limitation in his ability to “accept instructions and respond
appropriately to criticism from supervisors.” Therefore, he posits, the ALJ violated
Haga v. Astrue, where we found reversible error when an ALJ rejected without
explanation a state agency examining consultant’s findings of several moderate
mental limitations. 482 F.3d 1205, 1208 (10th Cir. 2007). Carver further claims that
to the extent Dr. Smith intended to equate the fourth Section I moderate limitation to
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his ability to “relate to supervisors and peers on a superficial work basis,” as noted in
Section III of the MRFCA, she failed to show how the two statements are equivalent.
We are not persuaded. The MRFCA itself states that Section I “is for
recording summary conclusions derived from the evidence in the file” and directs
that “[d]etailed explanation of the degree of limitation for each category . . . is to be
recorded in Section III.” Aplt. App., Vol. II at 237. This tracks several provisions of
the Social Security Administration’s Program Operations Manual Systems (POMS). 1
The POMS provides that Section III of the MRFCA, not Section I, is for recording a
medical consultant’s formal mental RFC assessment, and that adjudicators are to use
the Section III narrative as the RFC assessment:
The purpose of section I . . . is chiefly to have a worksheet to ensure
that the psychiatrist or psychologist has considered each of these
pertinent mental activities and the claimant’s or beneficiary’s degree of
limitation . . . . It is the narrative written by the psychiatrist or
psychologist in Section III . . . that adjudicators are to use as the
assessment of RFC.
POMS DI 25020.010 B.1.; see also POMS DI 24510.060 B.4.a. (stating that
“Section III . . . is for recording the mental RFC determination [and where] . . . the
actual mental RFC assessment is recorded”); POMS DI 24510.065 A.
(substantially the same).
1
The POMS is “a set of policies issued by the Administration to be used in
processing claims.” McNamar v. Apfel, 172 F.3d 764, 766 (10th Cir. 1999). We
“defer to the POMS provisions unless we determine they are ‘arbitrary, capricious, or
contrary to law,’” Ramey v. Reinertson, 268 F.3d 955, 964 n.2 (10th Cir. 2001)
(quoting McNamar, 172 F.3d at 766).
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But this does not mean that an ALJ can turn a blind eye to moderate Section I
limitations. In a note to its description of the “moderately limited” checkbox, the
POMS states that “[t]he degree and extent of the capacity or limitation must be
described in narrative format in Section III [of the MRFCA].” POMS DI 24510.063
B.2. (boldface omitted) (emphasis added). The POMS also provides that “[t]he
discussion of all mental capacities and limitations in [Section III] must be in
narrative format,” and that Section III is for “explaining the conclusions indicated
in section I, in terms of the extent to which these mental capacities or functions could
or could not be performed in work settings.” POMS DI 24510.060 B.4.a. & B.4.b.
Thus, if a consultant’s Section III narrative fails to describe the effect that each of the
Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be
considered part of the substantial evidence supporting an ALJ’s RFC finding.
Several district courts in this circuit have reached a similar conclusion based on
reasoning we consider persuasive. See, e.g., Gorringe v. Astrue, 898 F. Supp. 2d
1220, 1224-25 (D. Colo. 2012); Baysinger v. Astrue, No. 11-cv-00333-WYD,
2012 WL 1044746, at *5-6 (D. Colo. Mar. 28, 2012) (unpublished).
Applying these principles, we conclude that, contrary to Carver’s argument,
Dr. Smith’s Section III narrative adequately encapsulated the moderate limitation in
Carver’s ability to accept instructions and respond appropriately to supervisor
criticism that she marked in Section I. Dr. Smith’s Section III statements that Carver
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could “relate to supervisors and peers on a superficial work basis” and in a work
scenario involving only “simple tasks with routine supervision,” Aplt. App., Vol. II
at 239, are the functional manifestations of that Section I moderate limitation. In
other words, Dr. Smith’s opinion was that Carver could relate to supervisors only
superficially and with respect only to simple tasks requiring no more than routine
supervision. Those are, in Dr. Smith’s opinion, the effects of the moderate limitation
in Carver’s ability to accept instructions and respond appropriately to supervisor
criticism. Hence, we reject Carver’s argument that Dr. Smith failed to show how her
narrative was equal to the language of the check-box limitation.
As noted, the ALJ gave great weight to Dr. Smith’s opinion, but he did not
repeat verbatim Dr. Smith’s Section III narrative in his RFC finding or the
corresponding hypothetical to the VE. In particular, as Carver observes, the ALJ did
not use the word “superficially” in describing Carver’s ability to interact with
supervisors. But in our opinion, the ALJ sufficiently captured the essence of the
Section III functional limitations by stating that Carver could “understand, remember,
and carry out simple instructions in a work-related setting” and could “interact with
co-workers and supervisors, under routine supervision.” Id. at 29. Interacting with
supervisors in the course of routine supervision over simple work is tantamount to
the “superficial” interaction typically encountered in jobs involving such work. To
conclude otherwise would parse the ALJ’s language too finely.
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Moreover, the ALJ’s RFC finding (and corresponding hypothetical to the VE)
is further supported by and consistent with the opinion of Dr. Derrise Garner, a
psychologist who examined Carver for the DDS, that Carver could “interact in a
limited contact situation involving work supervisors and/or co-workers.” Id. at 227.
The ALJ gave great weight to Dr. Garner’s opinion, and Carver has not claimed error
with respect to that opinion.
For all the foregoing reasons, we conclude that there was no error regarding
this functional category.
2. Concentration, Persistence, or Pace
Carver next argues that the ALJ failed to include in the RFC and the
corresponding hypothetical to the VE his own step-three “paragraph B” finding that
Carver is moderately limited in concentration, persistence, or pace. We disagree.
Social Security Ruling (SSR) 96-8p states that “[t]he mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more detailed assessment
[than at steps two and three] by itemizing various functions contained in the broad
categories found in paragraphs B and C of the adult mental disorders listings.”
SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). The ALJ complied with the
Ruling’s requirements. In reaching his step-three finding, the ALJ discussed a
third-party function report completed by Carver’s fiancée in which she stated that
Carver can pay attention for “as long as you keep his attention,” is “good” at
following written and spoken instructions, and can “finish what he[] starts.” Id.
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at 188. The ALJ also referred to Carver’s own function report, where he stated he
was “not very good” at handling stress or changes in routine. Id. at 162. And the
ALJ discussed Dr. Garner’s opinion that Carver “showed no significant impairment in his
attention” and that his “attention and memory [were] within average range.” Id. at 27. In
formulating his RFC, which included only one limitation in this area—to work involving
simple instructions, the ALJ expressly noted that his RFC “assessment reflects the
degree of limitation [he] . . . found in the ‘paragraph B’ mental function analysis.”
Id. at 28. He then discussed Dr. Garner’s report at length, quoting and affording
great weight to her opinion that “[a]t the maximum, [Carver] can concentrate and
persist on moderately complex tasks during a normal work day.” Id. at 35 (quoting
id. at 227).
Further, the ALJ also relied on the opinions set out in Dr. Smith’s PRTF and
MRFCA when formulating his RFC finding, although he did not discuss them in detail.
See id. at 36 (stating, as part of his RFC analysis, that he gave “great weight to the
opinions of the consultative examiners and medical consultants of the State [DDS]”). In
the PRTF, Dr. Smith checked a box indicating that Carver was moderately limited in
concentration, persistence, or pace. In Section I of the MRFCA, Dr. Smith marked only
one moderate limitation in the category of “sustained concentration and persistence”—
Carver’s “ability to carry out detailed instructions.” Id. at 237. In all other
sub-categories of “sustained concentration and persistence,” including the abilities to
maintain attention and concentration for extended periods and to work at a consistent
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pace, Dr. Smith marked boxes indicating that Carver was not significantly limited. In her
Section III narrative, Dr. Smith limited Carver to “simple tasks” and stated he “can adapt
to a simple work situation.” Id. at 239. In so doing, Dr. Smith provided a
POMS-compliant Section III narrative regarding concentration, persistence, or pace
because she accounted for the one moderate limitation in that functional category when
she limited Carver to simple tasks and work situations.
We next conclude that the ALJ permissibly relied on the functional limitations in
concentration, persistence, or pace described in Section III of the MRFCA that stem from
the general, moderate limitation indicated by the checked box in Section I (and, for that
matter, by the checked box on the PRTF). The ALJ included the more-precise Section III
functional limitations in his RFC finding and the corresponding hypothetical to the VE,
including only a limitation related to the complexity of the work—that Carver could only
perform jobs involving simple instructions.
Through his detailed review of Dr. Garner’s report and his reliance on Dr. Smith’s
PRTF and MRFCA, the ALJ fulfilled his obligation to further examine the moderate
“paragraph B” limitation in concentration, persistence, or pace he found at step three.
Accordingly, there was no legal error, and Dr. Garner’s report and Dr. Smith’s PRTF
and MRFCA constitute substantial evidence in support of the RFC and corresponding
hypothetical to the VE regarding this functional category.
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The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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