FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 7, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CASSANDRA M. BELL,
Plaintiff - Appellant,
v. No. 15-3161
(D.C. No. 6:13-CV-01310-EFM)
CAROLYN W. COLVIN, acting (D. Kan.)
Commissioner of Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Cassandra Bell appeals from a district court order affirming the
Commissioner’s decision denying her application for disability insurance benefits.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I
Bell applied for benefits in November 2009. After the administrative denial of
her claims, she received a hearing before an administrative law judge (“ALJ”), at
*
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 This order and judgment is not binding precedent,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.
which Bell and a vocational expert testified. After the hearing, the ALJ received
interrogatory responses from a medical expert. The ALJ found at step two of the
five-step evaluation process, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007), that Bell had several severe impairments. However, the ALJ further found
that Bell had the residual functional capacity (“RFC”) to perform light work subject
to several limitations. Based on her RFC, the ALJ found at step four that Bell was
unable to perform her past relevant work. At step five, the ALJ found that there were
jobs in the national economy that Bell could perform and thus determined that Bell
was not disabled.
The Appeals Council declined to review the ALJ’s decision, the district court
upheld the decision, and this appeal followed. Bell contends the determination of
non-disability must be reversed because the ALJ erroneously determined her RFC.
She also contends the case should be remanded because of new and material evidence
that did not exist at the time of the ALJ hearing.
II
We review de novo the district court’s ruling in a social security case and
“independently determine whether the ALJ’s decision is free from legal error and
supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (quotation 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) (quotation
omitted). To determine whether the substantiality test has been met, we meticulously
2
examine the record as a whole, but we do not reweigh the evidence or substitute our
judgment for that of the ALJ. Id. at 1070-71.
We review for abuse of discretion the district court’s denial of Bell’s motion to
remand the case based on new and material evidence. See Wilson v. Astrue,
602 F.3d 1136, 1140 (10th Cir. 2010).
A
Bell advances several arguments with respect to her RFC. First, she contends
that the RFC determination fails to account for the ALJ’s findings at step three that
she often required assistance with personal hygiene, did not leave home
independently, and had a marked limitation in her activities of daily living (“ADLs”).
However, the evaluation of mental impairments at steps two and three of the
evaluation process is analytically distinct from an RFC assessment. See 20 C.F.R.
§ 416.920a (describing the “special technique” for evaluating the severity of mental
impairments). At these early steps of the process, the ALJ rates the degree of the
claimant’s impairment in four functional areas. See Wilson, 602 F.3d at 1141. These
ratings “are not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC
assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment . . . .” SSR 96-8p, 1996 WL 374184, at *4.
The ALJ followed the proper procedure by first applying the special technique
to evaluate the severity of Bell’s mental impairments, then separately assessing her
RFC. Although the ALJ found that she had a marked restriction in her ADLs, the
3
ALJ also found that the “paragraph B” criteria were not satisfied. See generally
Carpenter v. Astrue, 537 F.3d 1264, 1268-69 (10th Cir. 2008). In assessing Bell’s
RFC, the ALJ considered the extent to which her impairments limited her ability to
function. In the absence of objective medical evidence supporting her allegations of
disabling impairments, the ALJ proceeded to weigh the credibility of her statements
about the intensity, persistence, and limiting effects of her symptoms. See Luna v.
Bowen, 834 F.2d 161, 165 (10th Cir. 1987) (“The absence of an objective medical
basis which supports the degree of severity of subjective complaints alleged is just
one factor to be considered in evaluating the credibility of the testimony and
complaints.” (quotation omitted)); see also SSR 96-7p, 1996 WL 374186, at *1
(adjudicator must carefully consider self reports of pain and all other evidence in
making credibility determination if objective evidence is not dispositive).
Guided by 20 C.F.R. § 404.1529(c) and the factors set forth in Social Security
Ruling 96-7p, the ALJ concluded that Bell’s statements about the intensity,
persistence, and limiting effects of her symptoms were credible only to the extent that
she could perform light work with certain limitations. We reject Bell’s contention
that this conclusion was precluded by the ALJ’s determination at step three that she
had a “marked limitation” in her ADLs. Our review of disability cases requires us to
“consider whether the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence.” Hackett v. Barnhart, 395 F.3d 1168, 1172
(10th Cir. 2005). We do not agree that an RFC to perform light work with limitations
is inherently incompatible with a “marked” limitation in just one of the four
4
functional limitations areas delineated in the special technique—particularly if the
ALJ finds no limitations in the other three functional areas. Bell has not shown the
ALJ applied an incorrect legal standard. See Lax, 489 F.3d at 1084.
Bell further argues that the ALJ failed to properly consider the psychological
component of her physical symptoms when assessing her RFC and that the ALJ erred
by minimizing her somatoform disorder. The absence of objective medical findings
alone cannot be used to rule out claims of disabling pain because “[s]omatoform
disorders are characterized by physical complaints for which appropriate medical
evaluation fails to reveal a physical pathology, or when such complaints, and any
resulting impairment, is grossly in excess of what would be expected from a patient’s
diagnosis.” Wall, 561 F.3d at 1059 n.18. However, “[a] claimant’s subjective
allegation of pain is not sufficient in itself to establish disability.” Branum v.
Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004) (quotation omitted).
In discussing Bell’s diagnosis of a somatoform disorder, the ALJ considered a
psychological assessment showing the absence of any psychiatric disorders,
above-average memory function, and no difficulties with attention and concentration.
According to the assessment, Bell did not have any substantial cognitive difficulties
and was not expected to have difficulty participating in a pain rehabilitation center
program at the Mayo Clinic. The ALJ also considered a psychiatric assessment,
based in significant part on Bell’s own reports about her condition, noting the
absence of symptoms for several disorders. And the ALJ considered Bell’s
expressed reluctance to pursue certain approaches to her care and her failure to
5
follow up on recommended treatment options for her pain, such as a psychological
and physical rehabilitative approach or seeing a psychiatrist.1 We note further that
the ALJ assigned less weight to one of the medical opinions in the record for the
precise reason that it did not address Bell’s somatoform disorder. In light of this
discussion and analysis, Bell’s contention that the ALJ completely overlooked her
somatoform disorder in making the RFC determination is unavailing. Our limited
scope of review precludes us from reweighing the evidence or substituting our
judgment for that of the ALJ. Wall, 561 F.3d at 1070.
Bell also argues that the ALJ erred by failing to take into consideration her
fibromyalgia diagnosis. We disagree. “The burden to prove disability in a social
security case is on the claimant, and to meet this burden, the claimant must furnish
medical and other evidence of the existence of the disability.” Branum, 385 F.3d
at 1271. Although the diagnosis is mentioned in some of the medical records, the
record supports the conclusion that it was encompassed within her later diagnosis for
somatoform disorder. “[C]omplaints of severe pain that do not readily lend
themselves to analysis by objective medical tests are notoriously difficult to diagnose
and treat, and the diagnoses themselves are often overlapping.” Wilson, 602 F.3d
at 1143. At the hearing before the ALJ, Bell did not mention her fibromyalgia. She
1
To the extent Bell argues that her decision not to pursue treatment options
was irrelevant, we disagree. An “individual’s statements may be less credible if the
level or frequency of treatment is inconsistent with the level of complaints, or if the
medical reports or records show that the individual is not following the treatment as
prescribed and there are no good reasons for this failure.” SSR 96-7p, 1996 WL
374186, at *7.
6
makes no showing that her fibromyalgia qualifies as a severe impairment. And she
makes no argument or showing as to how the RFC determination in this case would
have been different if the ALJ had listed fibromyalgia as a severe impairment.
Bell further contends that the ALJ erroneously evaluated her activities without
considering the difficulties she had with them. Her argument that the ALJ ignored
factors favorable to her credibility is closely related. We are persuaded by neither.
Bell’s purported difficulties with her ADLs were supported mostly by her own
statements and testimony, which the ALJ found to be only partially credible for the
reasons already discussed. See Wall, 561 F.3d at 1070 (having found claimant not
fully credible, ALJ was permitted not to treat her testimony as strong evidence of her
disability). An ALJ’s credibility findings are entitled to special deference. White v.
Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (an ALJ “is uniquely able to observe
the demeanor and gauge the physical abilities of the claimant in a direct and
unmediated fashion”).
Nor are we persuaded by Bell’s arguments concerning the ALJ’s
characterization of some evidence. The ALJ’s common-sense observation that many
of her hobbies were sedentary activities does not constitute improper speculation.
And it was not inaccurate for the ALJ to find that she was currently studying based
on her testimony that she was still in school and had only four classes left to finish
her degree. Further, the ALJ’s finding that Bell did not have significant limitations
in the areas of social functioning or sustained concentration or pace is consistent with
evidence in the record, including medical opinions, and is not contradicted by her
7
role as a youth director at her church. There is substantial evidence to support the
ALJ’s conclusions, and to the extent Bell points out evidentiary conflicts in the
record, they were for the ALJ to resolve. See Keyes-Zachary v. Astrue, 695 F.3d
1156, 1172 (10th Cir. 2012).
Factors favorable to her credibility that Bell contends were ignored by the ALJ
include the difficulties she faced from a young age, her doctor’s belief that her
symptoms were real, her good work history, and her efforts to obtain relief by
traveling to the Mayo Clinic. However, “[t]he ALJ is not required to discuss every
piece of evidence.” Wall, 561 F.3d at 1067 (quotation omitted). Assuming these
factors are relevant, we decline to reweigh the evidence in this case or substitute our
judgment for that of the ALJ. See Flaherty, 515 F.3d at 1070-71.
Bell claims that the ALJ evaluated erroneously several medical opinions in the
case. These opinions are all addressed in the ALJ’s detailed and thorough, sixteen-
page decision. Bell’s arguments to the contrary are underdeveloped and conclusory.
In brief, we reject Bell’s argument that Dr. Morparia’s opinion2 was not adequately
considered because Bell fails to explain how that opinion is inconsistent with the
ALJ’s RFC assessment. The ALJ permissibly assigned little weight to the opinion of
Dr. Fleming because he offered no specific functional limitations and very little
rationale for his opinion. Dr. Netherton’s opinion was given little weight because it
lacked support in the record and was inconsistent with Dr. Netherton’s own treatment
2
Although Dr. Morparia is not mentioned by name in the ALJ’s decision, it is
clear that her examination is discussed at two different points in the decision based
on the exhibit citation as well as the date, place, and type of examination.
8
notes. The ALJ noted that Dr. St. Louis’ opinion was based in part on Bell’s
subjective reports about her symptoms, which the ALJ had already deemed not fully
credible, and was not consistent with other evidence in the record. Dr. Rees’ overall
opinion was accorded some weight, but the ALJ was not persuaded by Dr. Rees’
conclusion that Bell needed a chairlift for her basement stairs, finding that limitation
was not supported by other evidence in the record. Finally, the ALJ did not err in
giving substantial weight to Dr. Parsons’ opinion that Bell had the capacity to
perform the requirements for light work because it was consistent with the evidence
as a whole. The ALJ did not rely exclusively on Dr. Parsons’ opinion, but considered
and gave substantial weight to two other medical opinions. We thus conclude that
the ALJ appropriately considered and weighed the medical opinion evidence. “The
possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by substantial
evidence.” Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (quotation
omitted).
Lastly, we reject Bell’s contention that the ALJ failed to consider the
combined effect of her impairments. She has failed to support this contention with a
developed argument. See Wall, 561 F.3d at 1065. Moreover, the ALJ’s decision is
based on a thorough review of the evidence in the record, including findings of nine
severe impairments, and opinions and statements from more than a dozen doctors,
specialists, and third-party reporters.
9
B
After the ALJ’s decision was issued, Bell was diagnosed with Bechet’s
Syndrome and avascular necrosis. She argues that these diagnoses constitute new
and material evidence warranting a remand under 42 U.S.C. § 405(g). We are not
persuaded. In this context, evidence is material if the ALJ’s decision “might
reasonably have been different had the new evidence been before him when his
decision was rendered.” Wilson, 602 F.3d at 1148 (quotation omitted). However,
Bell offers only mere speculation as to how these diagnoses are related to symptoms
she experienced during the relevant time period. “[A] retrospective diagnosis
without evidence of actual disability is insufficient.” Coleman v. Chater, 58 F.3d
577, 579 (10th Cir. 1995) (quotation omitted). She does not point to any objective
medical opinions connecting these diagnoses to her earlier symptoms. Although she
suggests the diagnoses would have strengthened her credibility, she makes no
argument as to how they could have changed the ALJ’s RFC determination. Under
these circumstances, the district court did not abuse its discretion by denying Bell’s
request to remand the case to the ALJ.
III
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
10