FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CURTIS JOHNSON,
Plaintiff - Appellant
v. No. 15-5021
(D.C. No. 4:14-CV-00029-PJC)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
Curtis Johnson appeals from a district court order, issued by the magistrate
judge under 28 U.S.C. § 636(c)(1), upholding the Commissioner’s denial of Title II
Social Security disability benefits. Focusing on the issues properly raised
by Johnson, we review the Commissioner’s decision to determine whether it is free of
legal error and supported by substantial evidence. Krauser v. Astrue, 638 F.3d 1324,
1326 (10th Cir. 2011). Concluding that to be the case, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
GENERAL BACKGROUND
A brief summary of undisputed facts regarding the course of Johnson’s
treatment will help place our discussion of the issues engaged by the parties in
context. Johnson injured his back in September 2005. Lumbar x-rays and an MRI
revealed two ruptured discs and three bulging discs as well as underlying
degenerative arthritis. An orthopedic surgeon, Dr. Emil Milosavljevic (“Milo”),
recommended additional lower-back imaging in February 2006, but Johnson did not
return for two years. He evidently had unsuccessful chiropractic treatment during
that time.
Johnson eventually qualified for funding from Vocational Rehabilitation
Services of Oklahoma and returned to Milo in February 2008. Johnson’s condition
had become much worse and Milo recommended surgery, consisting of a lumbar
laminectomy and discectomy, which was performed in April 2008. After
post-surgical recovery, Johnson’s condition gradually improved, particularly his
ability to walk. Milo prescribed physical therapy and encouraged increased activity,
especially walking and noted the absence of any request for medication from
Johnson. For various reasons, however, physical therapy was delayed and Johnson
curtailed his therapeutic walking. His progress stalled and even reversed through the
fall of 2008. In November 2008, he began physical therapy and showed some
improvement. Milo prescribed six more weeks of physical therapy and again noted
the lack of any request for medication.
2
In January 2009, Milo found encouraging improvement from physical therapy
and treadmill-walking, noting a gain in leg strength and less spasticity in gait.
Further improvement was evident in a February 2009 follow-up, including an ability
to step up on tiptoes that had previously been impossible. Thereafter, however,
physical therapy and personal exercise tailed off and Johnson’s condition ceased to
improve and, indeed, began to deteriorate again. In June and July 2009, Milo noted
the overall inadequacy of post-surgical therapeutic efforts and indicated any future
improvement with physical therapy would likely be only marginal. Subsequent visits
resulted in similar conclusions. Additional imaging revealed extensive degenerative
arthritic changes to the lumbar and thoracic spine but no necessity for surgical
intervention.
Following the 2005 accident and during the course of his subsequent
treatment, Johnson filed unsuccessful applications for social security benefits but did
not pursue them beyond the preliminary review stage. He filed the instant Title II
application in September 2010, alleging an onset date (May 31, 2008) late enough not
to be barred by prior administrative determinations but early enough to fall before his
last-insured date (December 31, 2008).
AGENCY DECISION
The crux of this case is whether Johnson established a disability during the
time period between May 31 and December 31, 2008. The Administrative Law Judge
(ALJ) concluded to the contrary and denied benefits at the fifth step of the five-step
sequences for assessing disability, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
3
2009). The ALJ first confirmed that Johnson had not engaged in work qualifying as
substantial gainful activity after the alleged onset date (he did, however, continue
working part time at his home remodeling business from May 2008 until February
2010). At step two the ALJ found Johnson had one severe impairment, i.e,
degenerative disc disease, and at step three concluded this impairment did not meet
or equal any of the presumptively disabling impairments listed in the regulations.
The ALJ then found Johnson had the residual functional capacity (RFC) for a full
range of sedentary work, which, being insufficient for his past relevant work,
precluded a disposition at step four. Finally, at step five he cited two bases for
finding Johnson not disabled: the applicable medical-vocational guideline, see
20 C.F.R. Part 404, Subpart P, App. 2, Rule 201.21; and a vocational expert’s (VE’s)
identification of several particular jobs in the regional and national economy that
Johnson could perform, see 20 C.F.R. § 404.1569.
The assessment of Johnson’s credibility was critical to the decision. Johnson
testified his condition left him unable to sit, stand, or walk long enough to engage in
substantial gainful activity. The ALJ acknowledged his condition could potentially
produce the debilitating symptoms alleged by Johnson, and proceeded to assess the
credibility of those allegations in light of the entire record. Following an extended
analysis, he concluded Johnson was not credible to the extent of his asserted
functional limitations inconsistent with an RFC for sedentary work.
On administrative appeal, the Appeals Council denied review, making the
ALJ’s determination the Commissioner’s final decision for purposes of judicial
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review. See Krauser, 638 F.3d at 1327. Over several objections from Johnson the
district court upheld that decision, motivating this appeal.
APPEAL
As a general matter, we consider only “the issues the claimant properly
preserves in the district court and adequately presents on appeal.” Id. at 1326
(quoting Berna v. Chater, 101 F.3d 631 (10th Cir. 1996)). At least two issues now
argued by Johnson were not preserved in the district court: his challenge to the
ALJ’s decision at step three concluding his condition did not meet or equal one of the
listings;1 and his argument about the RFC determination being inconsistent with his
need of a cane for ambulation and a job coach.2 The due process objection he argued
at length in the district court has been dropped on appeal. Accordingly, we limit our
attention to the remaining objections: (1) the ALJ’s credibility analysis was flawed;
(2) the ALJ’s statement giving great weight to his treating physician and hospital
records was inconsistent with the RFC determination; and (3) the ALJ
“cherry-picked” the testimony of the VE by selectively relying on statements
supporting the existence of available sedentary jobs he could perform and ignoring
statements undercutting such a finding.
1
The district court noted Johnson had made only a passing reference, with no
adequately developed argument, to the ALJ’s determination under the listings and
held he had thus waived any objection in that regard. We agree—and further note
Johnson has not challenged the district court’s waiver ruling on appeal.
2
His briefing in the district court did not mention a cane and referred to a job
coach solely in connection with his objection to the ALJ’s alleged “cherry-picking”
of the VE’s testimony about available jobs he could perform. We consider the latter
objection later in this decision.
5
1. ALJ’s Credibility Determination
The ALJ did not consider Johnson to be credible, in particular because of his
repeated failure to comply (or comply in timely fashion) with Milo’s exercise and
physical therapy recommendations, especially during the critical post-operative
period in 2008, undermined his allegations of impairment. With that as his focus,
Johnson contends his noncompliance with physical therapy is attributable to factors
having nothing to do with the credibility of his complaints, namely lack of funds and
administrative delays in obtaining required authorizations from Vocational
Rehabilitation Services of Oklahoma (VR Services) to cover costs. The
Commissioner concedes administrative delay may explain some but not all of
Johnson’s dilatory and erratic pursuit of the prescribed physical therapy. The parties
go on to contest the point, particularly with respect to physical therapy authorized by
VR Services in either August or September 2008, by citing documents in the record
generally (but not conclusively) appearing to support Johnson’s position. In any
event, aside from formal physical therapy, the ALJ noted Johnson’s failure to comply
with Milo’s repeated directions to walk increasingly longer distances, which he
obviously could do without VR funding by using his treadmill or just walking.3 The
excuse he now offers—that it was too difficult to walk on his own without
concomitant physical therapy—is not substantiated by reference to any record
evidence.
3
Indeed, Milo’s notes indicate he encouraged walking, with or without
physical therapy.
6
Johnson also argues the ALJ overstated the improvement to be expected from
compliance with Milo’s recommendations of physical therapy and walking. First of
all, we note when, as here, noncompliance with prescribed treatment is invoked not
as independent basis for denying disability but only as a factor diminishing the
credibility of a claimant’s allegations of the severity of symptoms prompting the
treatment, the ALJ need not also find the forgone treatment would have restored the
claimant’s ability to work. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)
(distinguishing Frey v. Bowen, 816 F.2d 508 (1987)). Secondly, the record Johnson
cites as a reflection of Milo’s denial of the efficacy of post-surgical therapy and
exercise was not that at all; it was, rather, just a discharge note acknowledging the
extensive nature of the surgery just performed and cautioning Johnson not to “expect
any miracles” and to be aware the surgery “can even make him worse or not help at
all.” Aplt. App. Vol. 2 at 444. In contrast, post-surgical notes reflect Johnson’s
initial improvement, Milo’s repeated insistence on the need for prompt physical
therapy and increased walking to secure the goals of surgery, Milo’s expressions of
concern with delays in physical therapy and Johnson’s failure to comply with
recommendations for walking, and finally, in mid-2009, Milo’s statement that
“[f]rom now on, probably any kind of improvement with physical therapy will just be
marginal.” Id. at 390-92 (emphasis added). In sum, the district court properly cited
Johnson’s noncompliance with prescribed treatment after surgery as a factor
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undermining his credibility, regardless of the efficacy of the treatment—which in any
event was recognized by the prescribing physician.4
In addition, the ALJ did not rely exclusively on Johnson’s noncompliance with
prescribed treatment in discounting his credibility. The ALJ noted the lack of any
evidence of his use of assistive devices during the relevant period, id. Vol. 1 at 54,5
which not only specifically weighed against the credibility of his allegations of
ambulatory incapacity, see Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000)
(noting relevance of assistive devices to credibility determination), but also, given its
inconsistency with his testimony at the hearing indicating he had been using a cane,
Aplt. App. Vol. 1 at 52; see id. at 90, undermined his credibility as a general matter,
see SSR 96-7p, 1996 WL 374186 at *5 (“One strong indication of the credibility of
an individual’s statements is their consistency, both internally and with other
information in the case record.”). The ALJ also alluded to Johnson’s extensive daily
activities in continuing to independently care for himself,6 Aplt. App. Vol. 1 at 54,
which is another proper consideration in weighing the credibility of a claimant’s
4
We need not decide whether the ALJ may have overstated the potential
efficacy somewhat, in saying Johnson’s condition “would have improved drastically
if he had followed the doctor’s instructions,” Aplt. App. Vol. 1 at 54. Johnson’s
noncompliance properly undercut his credibility for the reasons stated above even if
the expected improvement were not as dramatic as the ALJ characterized it.
5
Indeed, a physical therapy report from October 2008 specifically noted the
absence of any assistive devices such as a cane. See Aplt. App. Vol. 2 at 453.
6
Johnson reported he does indoor and outdoor household chores, such as
mowing the lawn, washing his car, cleaning, laundry, repairs, and cooking meals,
without help from anyone. See Aplt. App. Vol. 2 at 274-75.
8
allegations of disabling impairment, see, e.g., Newbold v. Colvin, 718 F.3d 1257,
1267 (10th Cir. 2013). Finally, his summary of the medical evidence relevant to the
credibility determination included a number of references to non-severe pain and
little use of pain medication, see Aplt. App. Vol. 1 at 53-54—yet another proper
factor in assessing the credibility of a claimant’s complaints, see Wall, 561 F.3d at
1068; cf. Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004) (noting “records
. . . replete with [claimant’s] reports of pain and of prescriptions and refills for
medication” supported claimant’s credibility).
In sum, the reference to Johnson’s noncompliance with physical therapy may
be problematic in light of evidence regarding his difficulty in obtaining authorization
for such treatment, but the balance of the credibility analysis, resting on several
factors cumulatively undercutting Johnson’s credibility, adequately supports the
ALJ’s determination. In such circumstances, the determination was proper. See,
e.g., Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004).
2. ALJ’S Reliance on Milo
Johnson argues the ALJ’s stated reliance on Milo is belied by Milo’s own
treatment notes, which he insists reflect a condition inconsistent with the ALJ’s RFC
determination. Only four pages of the record are cited in support of this fairly
summary argument, and these are not very probative of Johnson’s condition during
the critical period between the alleged onset date of May 31, 2008 and his last
insured date of December 31, 2008. The first two pages not only precede the onset
date but, being preoperative and operative notes of April 29, 2008, shed no light on
9
the course of Johnson’s recovery following the corrective surgery. See Aplt. App.
Vol. 2 at 444, 448. As summarized previously, Johnson’s medical records during the
relevant period indicate improvement over his pre-surgical condition, particularly
when he engaged in physical therapy and walking. These records are not contrary to
the RFC determined by the ALJ—indeed, such records were relied on by social
security physicians to specify the sedentary RFC the ALJ ultimately adopted.7 See
id. at 409, 416.
The last two pages cited by Johnson are notes from February 2010 and
September 2011—long after the date last insured. See id. at 353, 433. And while
they show difficulty walking at that point (both refer to use of a cane), even they do
not demonstrate an inability to handle the occasional standing/walking that can be
involved in sedentary work. See generally 20 C.F.R. § 404.1567(a).8 One of the
records specifically recommends vocational rehabilitation to assist Johnson “in terms
of job placement efforts.” Aplt. App. Vol. 2 at 353. The records cited by Johnson
simply do not demonstrate any error by the ALJ in relying on Milo and at the same
time finding an RFC for sedentary work.
3. Omissions in RFC related to VE
Johnson contends the RFC determined by the ALJ and related to the VE
erroneously omitted reference to use of a cane, the need for a job coach, or any
7
Milo did not offer an opinion about RFC or specify functional limitations
indicating a particular RFC.
8
None of the medical records cited by Johnson establish a limitation on his
ability to sit for long enough to engage in sedentary work.
10
ambulatory impairment. He never objected to the omission of the cane in the district
court, so the point is forfeited. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.
1994) (“Absent compelling reasons, we do not consider arguments that were not
presented to the district court.”). In any event, as already explained above, records
from the relevant period in 2008 contradicted Johnson’s claim he had been using a
cane at that time.
The notion of a job coach arose during the hearing when the ALJ asked the VE
whether, based on Johnson’s testimony, someone with his claimed limitations could
still perform jobs in the national economy. See Aplt. App. Vol. 1 at 115-17. The VE
answered Johnson would need the assistance of a job coach, at least temporarily, to
be able to work with his alleged limitations. But, as detailed above, the ALJ
ultimately rejected Johnson’s testimony. The ALJ is required to include in a
hypothetical inquiry to the VE all and only those impairments the ALJ properly finds
borne out by the evidentiary record. Decker v. Chater, 86 F.3d 953, 955 (10th Cir.
1996). The VE’s response to a hypothetical inquiry the ALJ posed earlier, which did
not assume the credibility of all of Johnson’s claimed limitations, identified several
jobs he would be able to perform, supporting the ALJ’s denial of benefits at step five.
See Aplt. App. Vol. 1 at 114.
Finally, Johnson’s objection regarding the lack of an ambulatory impairment
in his RFC shares the faults of his other objections. This argument was not
developed in the district court, where Johnson focused instead on the issue of a job
coach. See id. Vol. 2 at 475-76. In addition, the VE testimony he seizes upon to
11
substantiate the need for and importance of an ambulatory impairment was given
only after the ALJ instructed the VE to consider an individual with the limitations
claimed by Johnson in his testimony at the hearing—again, testimony the ALJ
ultimately did not credit. It is also worth noting here the ALJ did include a limitation
on standing and walking in his RFC (no more than two hours in an eight-hour day)
and included that limitation in the hypothetical inquiry in response to which the VE
identified the several sedentary jobs Johnson could perform. See id. Vol. 1 at 114.
CONCLUSION
The judgment of the district court upholding the Commissioner’s denial of
benefits is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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