Anderson v. Astrue

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

FOR THE TENTH CIRCUIT April 4, 2013

Elisabeth A. Shumaker
Clerk of Court
JEANNE M. ANDERSON,

Plaintiff-Appellant,

v. No. 12-1102
(D.C. No. 1:11-CV-00586-MSK)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of Social Security,*

Defendant-Appellee.

ORDER AND JUDGMENT**

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.

Jeanne M. Anderson appeals from the district court’s decision that affirmed

the denial of her application for disability insurance benefits and supplement security

income. Ms. Anderson alleged disability as of June 2006 due to depression, anxiety

*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
and early Alzheimer’s. An administrative law judge (ALJ) conducted hearings on

September 8 and December 5, 2008, and issued a decision on January 13, 2009, in

which he concluded that Ms. Anderson was not disabled. The district court affirmed.

This appeal followed. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), and we affirm.

I.

Ms. Anderson argues that the ALJ’s decision should be set aside on two

grounds: (1) the ALJ failed to properly weigh the medical evidence in formulating

her mental residual functional capacity (RFC); and (2) even if the ALJ’s assessment

of her RFC was accurate, the vocational expert’s (VE) testimony as to the jobs she

could perform was in conflict with the Dictionary of Occupational Titles (DOT).

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

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

legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)

(internal quotation marks omitted). In other words, “[w]e consider whether the ALJ

followed the specific rules of law that must be followed in weighing particular types

of evidence in disability cases, but we will not reweigh the evidence or substitute our

judgment for the Commissioner’s.” Id. (internal quotation marks omitted).

“Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion[,] [and] requires more than a scintilla, but

less than a preponderance.” Id. (internal quotation marks omitted). Further, the

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harmless-error doctrine applies in social security cases “where, based on the 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.” Allen v. Barnhart, 357 F.3d 1140,

1145 (10th Cir. 2004).

II.

In the summer of 2006, while studying to become a registered nurse,

Ms. Anderson said that she was having trouble in her course work, and particularly in

math, “a subject she was good at.” Aplt. App. at 15. On December 1, 2006, more

than six months after she claimed she became disabled, she telephoned the office of

her treating physician, Ben Zimmerman, M.D., and left a message stating “she thinks

she had a ‘mini stroke.’” Id. at 300. The office called back a short time later, and

Ms. Anderson reported that “her nursing instructor told her she is ‘walking crooked’”

and she also complained of decreased memory and losing “‘her train of thought.’”

Id. The results of subsequent laboratory and MRI testing were unremarkable.

On December 13, 2006, Dr. Zimmerman gave a diagnosis of “Memory Loss,”

id. at 299, and prescribed Aricept. The pharmacy telephoned Dr. Zimmerman’s

office on December 28 to report that Ms. Anderson “took a 30 day RX of Ambien in

10 days to sleep through the snow storm and they would only refill one [week’s] RX

from 12-26-06 to get her through the New Year while she is on vacation.” Id. The

pharmacy was so concerned that it telephoned the following day to make sure that

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Dr. Zimmerman was aware of the issue. He wrote on December 29, “Wow, great

info! Thanks.” Id. During the next few months, Dr. Zimmerman continued to fill

various prescriptions for Ms. Anderson.

On May 17, 2007, Ms. Anderson telephoned Dr. Zimmerman’s office and

announced that “she ‘has been diagnosed [with] Alzheimer’s Disease,’ [and] is trying

to get in a research [program] & is [requesting] Dr. Ben call her [tomorrow].” Id.

at 138. The record contains no information as to who made the diagnosis or when it

was made. Doctor and patient spoke the following day, and Dr. Zimmerman wrote

that “she was accepted. I told I would release records when requested.” Id. On June

22, Dr. Zimmerman gave a diagnosis of Alzheimer’s.

Subsequent treatment notes reveal that Ms. Anderson was feeling well overall

and experiencing no severe side-effects from her prescription medications, which

included Aricept, Prozac, Ambien and Xanex. There is a record of a knee injury in

early 2008, but Ms. Anderson’s physical impairments are not at issue on appeal.

Alison Parsons, a psychologist, saw Ms. Anderson for a consultative

psychological evaluation in April 2007. Ms. Anderson reported that she lived

independently, and did her own cooking, shopping, and house cleaning without any

difficulty. She also told Dr. Parsons that she visits her mother in Arizona during the

winter and “enjoys her two dogs, playing computer games, visiting with friends,

reading and renting movies. She reported she manages her own finances without

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difficulty.” Id. at 305. Ms. Anderson told Dr. Parsons “that she could likely function

in a ‘menial job.’” Id.

As part of the examination, Dr. Parsons administered an IQ test along with

tests to assess Ms. Anderson’s cognitive flexibility and executive functioning. She

achieved a “Full Scale Score of 115 (High Average Range)” on the IQ test, id. at 306,

and “[a]lthough she scored lower on [cognitive flexibility], her performance on

[executive function] showed no impairment,” id. at 307. Dr. Parsons’s diagnostic

impressions were to rule out anxiety, depression and Alzheimer’s, and she

assigned Ms. Anderson a GAF score of 68.1 She observed that “[a]t the current

time, . . . Ms. Anderson is quite capable of a variety of everyday workplace tasks.”

Id. at 308.

In January 2008, Dr. Zimmerman filled out a “Mental Impairment

Questionnaire.” Id. at 130. He indicated that Ms. Anderson suffered from

“Depression – Major [and] Alzheimer’s [].” Id. According to Dr. Zimmerman,

Ms. Anderson did not meet the competitive standards necessary to perform even

unskilled work because she lacked the ability to: (1) remember work-like

procedures; (2) understand and remember very short and simple instructions;
1
The GAF is a subjective rating on a scale of 1 to 100 of “the clinician’s
judgment of the individual’s overall level of functioning.” American Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders (Text Revision 4th ed.
2000) at 32. A GAF of 68 indicates “[s]ome mild symptoms (e.g. depressed
mood and mild insomnia) OR some difficulty in social, occupational, or school
functioning . . . but generally functioning pretty well, has some meaningful
interpersonal relationships.” Id. at 34.

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(3) maintain attention for two-hour segments; (4) complete a normal workday and

workweek without interruptions from psychologically-based symptoms; (5) perform

at a consistent pace without an unreasonable number and length of rest periods;

(6) respond appropriately to changes in a routine work setting; and (7) deal with

normal work stress. He did opine that she was seriously limited, but not precluded

from carrying out very short and simple instructions and from getting along with

co-workers or peers without unduly distracting them or exhibiting behavioral

extremes. Last, he opined that she had 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.” Id. at 134.

In April 2008, the ALJ wrote to Dr. Zimmerman asking him to clarify his

opinions. In particular, the ALJ asked for his “assistance in understanding your

opinions and the bases for them,” including the “objective data [that] was used to

make all of the determinations as to her limits.” Id. at 124. Dr. Zimmerman

responded that “Ms. Anderson suffers from Alzheimer’s Disease. She is currently in

the middle stages of the disease with moderate short term memory loss and slight

long term memory loss. The prognosis is as usual with slow gradual progression of

memory loss.” Id. at 338.2 In June, the ALJ wrote again to Dr. Zimmerman

requesting the objective data. He responded:

2
Following an MRI and laboratory tests, Dr. Zimmerman diagnosed Ms.
Anderson in December 2006, with “Memory Loss.” Aplt. App. at 299. It wasn’t until
(continued)
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 I had thought we were finished with this case long ago, but apparently
not. I have known Ms. Anderson for approximately twelve years. . . .
While I did not perform any formal physical exam, I am not aware that
any physical features are manifest in Alzheimer’s disease. While not
noted, her apparent confusion and memory lapses were
apparent during our interview. Normal labs and MRI ruled out any
organic issues; this leaves Alzheimer’s as the diagnosis. Her memory
fortunately has improved on Razadyne (a medicine indicated for
dementia of Alzheimer’s type.

Id. at 339.

Peter Quintero, a neurologist, performed a consultative physical examination

of Ms. Anderson on February 29, 2008. In addition to describing a knee injury and

completing a “Medical Source Statement Of Ability To Do Work-Related Activities

(Physical),” id. at 332-37, Dr. Quintero, made some comments concerning

Ms. Anderson’s mental limitations.3

Lynn Parry, a neurologist, evaluated Ms. Anderson in April 2008, and

completed a “Mental Impairment Questionnaire.” Id. at 358-66. Dr. Parry found that

Ms. Anderson was “[s]eriously limited, but not precluded,” from being able to

perform unskilled work, id. at 363, but is “unable to work outside [the] home,” id.

after Ms. Anderson called him in May 2007 and told him that she had been diagnosed
with Alzheimer’s, that Dr. Zimmerman gave his June 2007 diagnosis of Alzheimer’s.
More to the point, there is no evidence in the record that Dr. Zimmerman conducted
any further testing to support his June diagnosis, which in turn appears to have been
based on what Ms. Anderson told him.
3
Dr. Quintero wrote that Ms. Anderson “could repeat four numbers forward and
three in reverse. She recalled two of four objects in five minutes. She made
numerous mistakes when performing serial 7’s. . . . She interpreted proverbs
poorly.” Aplt. App. at 329. He concluded that Ms. Anderson “does have significant
impairment with cognitive function.” Id. at 330.

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at 366. She also wrote that “Ms. Anderson is not able to work [] competitively at the

present time however she needs a specific diagnosis if any determination is to be

made of long-term deficits. I think it is reasonable to assume that she is not capable

of competitive work for at least 12-18 months.” Id. at 359.

“In an effort to clarify the nature and severity of any mental impairment(s) the

[ALJ] obtained testimony from Dr. Robert E. Pelc, a licensed psychologist familiar

with the Social Security Listing of Impairments set forth in the regulations. . . .”

Id. at 21. The ALJ also obtained testimony from Gayle Humm, M.D. At the

September 2008 hearing, Dr. Humm testified that Dr. Zimmerman’s “diagnosis of

Alzheimer’s was not even supported by the record.” Id. at 51. She explained, among

other things, that a diagnosis of Alzheimer’s is “somewhat of a diagnosis of

exclusion,” id., and that Dr. Zimmerman’s “workup [was] completely inadequate,”

citing as examples his failure to administer a “mental status examination,” or conduct

more laboratory tests, id. at 52.

Dr. Pelc also testified at the September 2008 hearing. He opined that the

testing performed by Dr. Parsons did not reflect any memory difficulties and more to

the point, was “not diagnostically conclusive,” in light of Ms. Anderson’s high IQ

scores, id. at 58.

At the supplemental hearing in December 2008, Dr. Pelc testified again. He

opined that Ms. Anderson had mild limitations in activities of daily living, social

functioning, concentration, persistence and pace, and that she was mildly impaired in

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terms of processing simple information. He noted in particular that “[t]he formal

psychological testing that was done [by Dr. Parsons] . . . was basically . . . within

normal limits,” id. at 30, and that there was no evidence to support any of the marked

limitations found by Dr. Zimmerman.

The ALJ found at step two of the five-step sequential evaluation process that

Ms. Anderson had the severe impairments of depression, cognitive disorder not

otherwise specified [NOS], and anxiety disorder NOS. At step four, the ALJ found

that Ms. Anderson “has the [RFC] to perform a full range of work at all exertional

levels but with the following nonexertional limitations: she can understand,

remember and carry out only simple instructions.” Id. at 15. At step five, the ALJ

determined that, based on the testimony of the VE, Ms. Anderson “would be able to

perform the requirements of all unskilled work (specific vocational preparation

(SVP) 2).” Id. at 23. He further noted the VE’s testimony that even if Ms. Anderson

“could not work in close proximity to others . . . without being distracted . . . the

[VE] still identified other unskilled occupations that exist in significant numbers [that

Ms. Anderson] could perform.” Id. at 24. As such, he found that Ms. Anderson was

not disabled.

III.

A. Alzheimer’s Disease

Ms. Anderson argues that the ALJ erred in concluding that Alzheimer’s

disease is not a medically determinable impairment. The ALJ did find, however, that

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in addition to the impairments of depression and anxiety, Ms. Anderson had a

“cognitive disorder.” Id. at 13. We agree with the Commissioner that even if

Alzheimer’s is a medically determinable impairment (for which Ms. Anderson

provides no authority), the failure to label her cognitive impairment as Alzheimer’s is

harmless error because the focus of the analysis is on the functional limitations

caused by the impairment, not on the label attached to the impairment. See Bernal v.

Bowen, 851 F.2d 297, 301 (10th Cir. 1988) (“The mere fact that [the claimant] was

diagnosed as suffering from [a particular disease or condition] does not automatically

mean that [s]he is disabled.”).

B. Dr. Zimmerman

The ALJ found that Dr. Zimmerman’s opinion was “neither controlling nor

entitled to any significant weight.” Aplt. App. at 19. According to Ms. Anderson,

the ALJ should have given controlling weight to Dr. Zimmerman’s opinion

concerning her mental impairments and their limiting effects on her ability to

perform any work. Alternatively, she argues that the ALJ’s decision was technically

deficient because in regards to her mental impairments, he did not commit to writing

his findings on the two factors set forth in Watkins v. Barnhart, 350 F.3d 1297,

1299-1300 (10th Cir. 2003), to determine whether Dr. Zimmerman’s opinion was

entitled to controlling weight. We reject the arguments.

In evaluating a treating physician’s opinion, the ALJ must first consider

“whether the opinion is well-supported by medically acceptable clinical and

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laboratory techniques [and, if so, whether it] is consistent with the other substantial

evidence in the record.” Watkins, 350 F.3d at 1300 (internal quotation marks

omitted); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If so, the ALJ must

give the opinion “controlling weight.” Watkins, 350 F.3d at 1300. If the opinion is

not entitled to controlling weight, the ALJ should next weigh the opinion “using all

of the factors provided in . . . § 404.1527 and 416.927.” Id. (internal quotation marks

omitted). Importantly, the ALJ does not need to discuss each and every factor

outlined in Watkins. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).

All that is required is that “the ALJ’s decision be sufficiently specific to make clear

to any subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reasons for that weight.” Id. (internal quotation marks

omitted).

In her opening brief, Ms. Anderson outlines Dr. Zimmerman’s treatment notes

and the mental impairment questionnaire. In particular, she argues that because

“Dr. Zimmerman’s opinions are well supported by diagnostics, by his own treating

notes and by other evidence in the record,” Aplt. Opening Br. at 20, they were

entitled to controlling weight. Ms. Anderson’s argument, in essence, asks this court

to reach a different conclusion about the weight to be afforded Dr. Zimmerman’s

opinion. However, we cannot reweigh the evidence. See Lax, 489 F.3d at 1084.

Ms. Anderson’s second argument is an alleged technical deficiency in the

ALJ’s decision. She argues that the ALJ’s failure to write that Dr. Zimmerman’s

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opinion was not supported by medically acceptable clinical and laboratory diagnostic

techniques is reversible error. We disagree.

The first Watkins factor looks at whether the opinion is well supported by

medically acceptable clinical and laboratory testing. But because there are no

conclusive clinical or laboratory techniques by which to diagnose Alzheimer’s, the

ALJ’s failure to mention this factor is unremarkable. As such, the ALJ

understandably looked at the second Watkins factor and concluded that Dr.

Zimmerman’s “diagnosis” of Alzheimer’s was inconsistent with the other substantial

evidence in the record. The relevant point is that “the ALJ provided good reasons in

his . . . [comprehensive decision] for the weight he gave to [Dr. Zimmerman’s]

opinion[] . . . [and] [n]othing more was required in this case.” Oldham, 509 F.3d

at 1258.

C. Dr. Quintero

On appeal Ms. Anderson argues that the ALJ did not properly evaluate

Dr. Quintero’s opinion concerning her mental impairments. In the district court,

however, Ms. Anderson, who was represented by counsel, argued only that the ALJ

did not afford the proper weight to Dr. Quintero’s opinion concerning her physical

limitations. Aplee. Supl. App. at 8-9. Because Ms. Anderson did not argue error in

the district court as to Dr. Quintero’s assessment of her mental impairments, we will

not consider this argument for the first time on appeal. See Crow v. Shalala, 40 F.3d

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323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider

arguments that were not presented to the district court.”).

D. Dr. Pelc

Ms. Anderson argues error as to the ALJ’s treatment of Dr. Pelc’s opinion on

two grounds. First, she argues that the ALJ erred by “not includ[ing] in his own RFC

assessment that [Ms. Anderson] had moderate limitations with regard to

concentration, persistence or pace, or moderate limitations in short-term memory.”

Aplt. Opening Br. at 15.

At step three of the sequential-evaluation process, the ALJ determines whether

the claimant has an impairment or combination of impairments that meets or

medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. At step four, the ALJ determines the claimant’s RFC. At the December

2008 hearing and in relation to step three, the ALJ asked Dr. Pelc to “review with

[him] the B criteria contained in the [relevant] listings and your opinions as to their

severity[.]” Aplt. App. at 29. It was in the specific context of the step-three analysis

that Dr. Pelc testified that he “felt that the moderate limitation was applicable in

terms of [Ms. Anderson’s] overall cognitive and concentration, persistence and pace

functioning.” Id. at 30. As the ALJ explained, “[t]o satisfy the ‘paragraph B’

criteria, the mental impairments must result in at least two of the following: marked

restriction of activities of daily living; marked difficulties in maintaining social

functioning; marked difficulties in maintaining concentration, persistence, or pace; or

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repeated episodes of decomposition.” Id. at 14. Based on the medical evidence and

Dr. Pelc (who reviewed all the documentary evidence), the ALJ concluded she did

not meet any listing, noting that “[t]he limitations identified in the ‘paragraph B’

criteria are not a residual functional capacity assessment but are used to rate the

severity of mental impairments at steps 2 and 3 of the sequential evaluation process,”

id.

We agree with the Commissioner that “the ALJ was not required to include

any of Dr. Pelc’s ‘B criteria’ opinions in his RFC assessment,” Aplee. Br. at 30, and

that “[Ms.] Anderson’s argument simply misunderstands the sequential evaluation

process,” id. See SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996) (stating that “the

[ALJ] must remember that the limitations identified in the ‘paragraph B’ . . . criteria

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”).

Despite the fact that the ALJ found that Ms. Anderson was limited to work

that required her to “understand, remember and carry out only simple instructions,”

Aplt. App. at 15, she argues that the ALJ ignored “Dr. Pelc’s opinion regarding [her]

short-term memory function,” Aplt. Opening Br. at 13. He did not.

As part of the RFC assessment, the ALJ must consider the claimant’s

work-related mental limitations, such as the “abilit[y] to: understand, carry out, and

remember instructions; use judgment in making work-related decisions; respond

appropriately to supervision, co-workers and work situations; and deal with changes

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in a routine work setting.” SSR 96-8p, 1996 WL 374184, at *6; see also 20 C.F.R.

§§ 404.1521(b), 416.921(b) (same). In making his RFC assessment, the ALJ asked

Dr. Pelc “whether or not [Ms. Anderson’s] ability to understand, remember, and carry

out instructions is in any way affected by any of [her] mental impairments.” Aplt.

App. at 31. He responded that “the limitations in that area would be mild in terms of

processing any simple information. It would be moderate in terms of processing

more complex or detailed information.” Id. Dr. Pelc defined “moderate” to mean

“[t]hat she would retain the general capacity to function in that area even though she

might encounter some difficulties or have some problems in handling such detailed

information. But it would not be a significant limitation that would preclude her

functioning, but that there would be some [e]ffect on her functioning in that domain.”

Id. at 32.

We agree with the Commissioner that the ALJ accounted for Dr. Pelc’s

opinion that Ms. Anderson had moderate limitations in her ability to understand,

remember, and carry out detailed or complex instructions when he limited her to

performing work limited to understanding, remembering, and carrying out only

simple instructions. And because the ALJ found that she had a moderate limitation in

this area, there is no merit to the argument that the ALJ ignored or rejected Dr. Pelc’s

opinion on this issue.

E. The VE’s Testimony

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 After considering Ms. Anderson’s age, education, work experience, and RFC,

the VE testified that Ms. Anderson “would be able to perform the requirements of all

unskilled work (specific vocational preparation (SVP) 2).”4 Aplt. App. at 23; see

also id. at 79. The VE further testified that even if Ms. Anderson had additional

limitations that the ALJ said were not supported by the record, including not being

able to work in close proximity to others without being distracted, there were “other

unskilled occupations that exist in significant numbers [Ms. Anderson] could perform

with examples including: cleaner, housekeeping DOT code 323.687-014, with 3,800

jobs in Colorado and 370,000 jobs in the United States; cleaner, industrial, DOT code

38[9].683-010, with 2,100 jobs in Colorado and 280,000 jobs in the United States.”

Id. at 24; see also id. at 79-80.

Ms. Anderson argues that the VE’s testimony was inconsistent with the DOT

because the DOT provides that some unskilled jobs require a Reasoning

Development Level of 3, which she allegedly lacks. Reasoning Development Levels,

as defined in the DOT, are a division of “General Educational Development (GED)”

and are rated between “1” and “6.” U.S. Dep’t of Labor, Dictionary of Occupational

Titles, Vol. II, App. C, III (4th Ed. Rev. 1991). GED does not describe specific

mental or skill requirements of a particular job, but rather describes the general

educational background that makes an individual suitable for the job, broken into the

4
“[U]nskilled work corresponds to an SVP of 1-2.” SSR 00-4p, 2000 WL
1898704, at *3 (Dec. 4, 2000).

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divisions of Reasoning Development, Mathematical Development and Language

Development.

Assuming there was a conflict between the VE’s testimony and the DOT,

the ALJ’s failure to resolve the alleged conflict was harmless error. Even if

Ms. Anderson was limited to unskilled work that had a Reasoning Development

Level of 1, the VE identified at least two such jobs (Cleaner, Housekeeper and

Sweeper Cleaner, Industrial) that the ALJ found exist in significant numbers,

which finding she does not dispute. Thus, the error was harmless because

no reasonable factfinder could have resolved the factual matter any other way.

Allen, 357 F.3d at 1145.

The judgment of the district court is affirmed.

Entered for the Court

Wade Brorby
Senior Circuit Judge

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