FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARCOS A. VIGIL,
Plaintiff - Appellant,
v. No. 17-1462
(D.C. No. 1:15-CV-02659-RM)
COMMISSIONER, SSA, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
_________________________________
Marcos A. Vigil appeals a district court order affirming the Commissioner’s
denial of disability and supplemental security income benefits. Proceeding pro se, he
repeats—verbatim—the same arguments raised by his attorney in the district court,
claiming an administrative law judge (ALJ) erred at steps 3, 4, and 5 of the disability
evaluation process, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(explaining the process). For the reasons that follow, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I
Mr. Vigil claimed he was disabled on January 1, 2006, by back problems and
schizophrenia. After an initial hearing, the ALJ denied benefits, but the district court
remanded for further administrative proceedings. On remand, the ALJ held a second
hearing and determined anew that Mr. Vigil was not disabled. The ALJ found that
Mr. Vigil was severely impaired by personality disorder, schizophrenia, and alcohol
abuse, but there was no evidence to “substantiate a finding of any severe impairment,
other than alcohol abuse.” R., Vol. 2 at 317.1 The ALJ concluded that Mr. Vigil did
not satisfy the criteria for any listed impairment, he could perform his past relevant
work as a prep cook and mail clerk, and he could transition to other jobs as a small
product assembler and floor wax technician. In reaching these conclusions, the ALJ
found that Mr. Vigil had the residual functional capacity (RFC) “to perform a full
range of work at all exertional levels,” except that his non-exertional limitations
required unskilled work that did not include dealing with the general public or more
than occasionally dealing with co-workers. Id. at 319. Mr. Vigil did not seek review
by the Appeals Council, and the district court affirmed.
II
“In reviewing the ALJ’s decision, we neither reweigh the evidence nor
substitute our judgment for that of the agency. Rather, we examine the record as a
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Mr. Vigil does not contest this step-two finding, and any error would be
harmless in any event, given that the ALJ unequivocally found at least one severe
impairment. See Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
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whole to ascertain whether the ALJ’s decision . . . is supported by substantial
evidence and adheres to the correct legal standards.” Newbold v. Colvin, 718 F.3d
1257, 1262 (10th Cir. 2013) (citation and internal quotation marks omitted).
On appeal, Mr. Vigil contests only the ALJ’s evaluation of his non-exertional
impairments. Although his arguments were apparently crafted by his attorney in the
district court, compare R., Vol. 1 at 29-44 with Aplt. Br. at 7-25, they are unfocused
and poorly developed. “We will consider and discuss only those of [his] contentions
that have been adequately briefed for our review.” Keyes-Zachary v. Astrue,
695 F.3d 1156, 1161 (10th Cir. 2012). As we understand Mr. Vigil’s brief, he
contends the ALJ erred at step three by finding that he did not meet the criteria for a
listed impairment; at step four by formulating an RFC that did not account for all of
his impairments and his doctors’ opinions; and at step five by posing a hypothetical
question to the vocational expert (VE) that did not accurately reflect his impairments.
We evaluate these arguments in turn.
A. Step Three: Listings
“At step three, the [ALJ must determine] whether the impairment is equivalent
to one of a number of listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.” Lax v. Astrue, 489 F.3d 1080,
1085 (10th Cir. 2007) (brackets and internal quotation marks omitted). “If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is
entitled to benefits.” Id. (internal quotation marks omitted). But to be disabled under
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a listed impairment, a claimant must present evidence demonstrating that he satisfies
all the criteria for the relevant listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Mr. Vigil fails to demonstrate that he satisfies all the criteria of any listed
impairment. His only specific argument relates to the ALJ’s conclusion that he did
not satisfy listing 12.03, in particular, that listing’s paragraph C criteria.
Listing 12.03 concerns “Schizophrenic, Paranoid and Other Psychotic
Disorders: Characterized by the onset of psychotic features with deterioration from a
previous level of functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03. To
satisfy the paragraph C criteria, a claimant must show a:
C. Medically documented history of a chronic schizophrenic, paranoid, or
other psychotic disorder of at least 2 years’ duration that has caused
more than a minimal limitation of ability to do basic work activities,
with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to
decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
Id.
Mr. Vigil correctly points out that the ALJ erred by summarily concluding,
without explanation, that he failed to satisfy these criteria, but he does not explain
how this error was anything but harmless. See Fischer-Ross v. Barnhart, 431 F.3d
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729, 733-34 (10th Cir. 2005) (applying harmless error analysis “where, based on
material the ALJ did at least consider (just not properly), we could confidently say
that no reasonable administrative factfinder, following the correct analysis, could
have resolved the factual matter in any other way” (internal quotation marks
omitted)). He alludes to subparagraph 3, arguing that he “has a history of one or
more years of inability to function outside a highly supportive living arrangement[,]
[h]e isolates in an apartment, situated close to his parents, his meals are provided at
least in part by his mother[,] and he is monitored by his father’s nearly daily visits.”
Aplt. Br. at 13 (internal quotation marks omitted). While the record clearly confirms
that he suffers from schizophrenic conditions and alcoholism, there is substantial
evidence that he does not have a “[c]urrent history of 1 or more years’ inability to
function outside a highly supportive living arrangement, with an indication of
continued need for such an arrangement.” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.03(C)(3). The ALJ cited evidence that Mr. Vigil lived alone, albeit close to his
parents, and could dress and bathe himself, do laundry, cook simple meals, and go to
the grocery store with his mother. The ALJ also cited evidence that although he did
not socialize with others, he spent time with his family and attended church services.
This evidence was consistent with the opinion of Dr. MaryAnn Wharry, an agency
physician, who determined that Mr. Vigil did not satisfy the paragraph C criteria.
Under these circumstances, we are confident that no reasonable factfinder would
have concluded otherwise.
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B. Step Four: RFC and Medical Source Opinions
Mr. Vigil next contends that the ALJ erred at step four by assessing an RFC
that failed to account for all of his impairments and his doctors’ opinions. On this
score, he first contends the RFC is flawed because the ALJ failed to weigh the
opinion of Dr. Brett Valette, an examining physician who believed Mr. Vigil had
“schizoid personality disorder” and “chronic alcohol dependency.” R., Vol. 2 at 246.
These diagnoses are consistent with the RFC, however, and the ALJ favorably cited
Dr. Valette’s opinion in evaluating Mr. Vigil’s daily activities. Thus, any oversight
in failing to specify the weight given to Dr. Valette’s opinion was harmless.
See Keyes-Zachary, 695 F.3d at 1165 (holding that any error from ALJ’s failure to
specify the weight given to an examining physician’s opinion was harmless where the
opinion was not inconsistent with the limitations assessed in the RFC); see also
Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When the ALJ does not
need to reject or weigh evidence unfavorably in order to determine a claimant’s RFC,
the need for express analysis is weakened.”).
Mr. Vigil also suggests the ALJ ignored the opinion of Dr. Steven Stockdale, a
clinical psychologist who evaluated Mr. Vigil in December 2005. Dr. Stockdale
diagnosed Mr. Vigil with severe and chronic alcohol dependence, secondary to a
severe and recurrent depressive disorder with suicidal thoughts, schizoaffective
disorder, and mixed personality disorder with psychotic thinking and schizoid and
schizotypal personality characteristics. Dr. Stockdale concluded that Mr. Vigil was
“gravely disabled,” R., Vol. 2 at 211, and, after a brief period of counselling, had him
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hospitalized for six days in 2006. Thereafter, Dr. Stockdale referred Mr. Vigil to
Dr. James Spadoni for treatment and did not see Mr. Vigil again until April 2012,
when he noted Mr. Vigil was living on his own and “only had 2 to 3 relapses into
alcohol in the past years and the relapses have lasted for 1 day,” id. at 276.
Dr. Stockdale added:
I continue to feel [Mr. Vigil] does not have the ability to maintain a job
in the regular work force due to his psychiatric status. He continues to
have chronic mental illness and does not have the skills, physical or
cognitive energy or stamina, and adequate reason or judgment to work.
Id. at 277.
The ALJ gave very little weight to Dr. Stockdale’s opinion. The ALJ reasoned
that Dr. Stockdale did not assess any specific functional limitations, he did not have a
treatment relationship with Mr. Vigil, he did not appreciate the extent of Mr. Vigil’s
alcoholism, and he was unfamiliar with the standards and evidentiary requirements
applicable to disability claims.
On appeal, Mr. Vigil fails to advance any specific challenge to the ALJ’s
rationale for affording Dr. Stockdale’s opinions little weight. His opening brief
contains only sporadic references to Dr. Stockdale’s opinion and offers no basis upon
which we might conclude that the ALJ erred. See Aplt. Br. at 17-18. “An appellant’s
opening brief must identify ‘appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which appellant relies.’”
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P.
28(a)(8)(a)). “Consistent with this requirement, we routinely have declined to
7
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.” Id. These same rules govern Mr. Vigil’s brief, even
though we apply more lenient standards to pro se pleadings. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Because Mr. Vigil
fails to articulate any developed argument challenging the ALJ’s evaluation of
Dr. Stockdale’s opinion, he has waived appellate consideration of that aspect of the
ALJ’s decision. See Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014)
(“perfunctory complaints failing to frame and develop an issue are not sufficient to
invoke appellate review” (internal quotation marks omitted)).
One additional note: to the extent Mr. Vigil contends the RFC “fail[s] to
include [his] intolerance for human interaction and a need to isolate,” Aplt. Br. at 20,
this argument is refuted by the RFC itself, which limits him to unskilled work that
does not include dealing with the general public or more than occasionally dealing
with co-workers.
C. Step Five: Hypothetical Question
Finally, Mr. Vigil contends the ALJ erred at step five by posing an inaccurate
hypothetical question to the VE. He says the ALJ’s hypothetical should have
accounted for a multitude of different limitations, diagnoses, and symptoms,
including his tendency to isolate from others, his unusual thought processes, his
limited ability to function in high-stress environments, his moderate limitations in
maintaining concentration, persistence, and pace, his paranoia, and his symptoms of
psychosis or depression.
8
It is well established that a hypothetical question posed to a VE must reflect all
of the impairments borne out by the record. See Decker v. Chater, 86 F.3d 953, 955
(10th Cir. 1996). The ALJ’s hypothetical here restricted Mr. Vigil from performing
“complex tasks, defined as SVP 2 or less,” and allowed him to perform only
unskilled work in which he completely refrained from dealing with the general public
and only occasionally dealt with co-workers. R., Vol. 2 at 341. These restrictions
reflected the nonexertional limitations found by the ALJ, and Mr. Vigil does not
argue otherwise or explain why the ALJ was obliged to specifically include each
individual symptom and diagnosis in the hypothetical. Consequently, he fails to
show any reversible error.
III
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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