F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 24 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ELIZABETH HACKETT,
Plaintiff-Appellant,
v. No. 04-1047
JO ANNE B. BARNHART,
Commissioner of Social Security
Administration,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 03-B-168 (PAC))
Submitted on the briefs: *
Ann J. Atkinson, Aurora, Colorado, for Appellant.
John W. Suthers, United States Attorney; Kurt J. Bohn, Assistant U.S. Attorney;
Michele M. Kelley, Assistant Regional Counsel, Social Security Administration,
Office of the General Counsel, Denver, Colorado, for Appellee.
*
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.
Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District
Judge.
HARTZ, Circuit Judge.
Plaintiff Elizabeth Hackett appeals from an order of the district court
affirming the Commissioner’s decision to deny her application for Social Security
disability benefits. Plaintiff is a college graduate who has past relevant
experience as a checker/cashier, a director of occupational therapy, a program
coordinator for an acute-care hospital, an occupational therapist, a wedding
coordinator, and a life-care instructor in a group home. At the time her alleged
disability began, she was 31 years old. She claims her disability is due to
“bilateral (RSD) reflex sympathetic dystrophy, right tenosyn[o]vitis, limited range
of motion, upper back pain, depression and migraines.” Aplt. App., Vol. II at
103.
Plaintiff contends that the decision of the Commissioner should be set aside
on three grounds: (1) on her appeal from the decision of the administrative law
judge (ALJ), the Social Security Appeals Council did not properly consider the
permanent-and-total-disability decision of the Colorado Executive Department in
her workers’ compensation case; (2) the ALJ’s findings regarding her residual
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
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functional capacity (RFC) are unsupported by substantial evidence because there
is inadequate support for the ALJ’s finding that she was not credible and the ALJ
did not properly consider the opinions of her treating physicians; and (3) the ALJ
misstated the testimony of the vocational expert (VE) and failed to reconcile the
VE’s actual testimony with the Dictionary of Occupational Titles. We have
jurisdiction over this appeal under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We
affirm on all grounds except the failure to reconcile. We reverse in part and
remand to the district court with directions to remand to the agency for further
proceedings.
I Background
The Commissioner is required to follow a five-step sequential evaluation
process to determine whether a claimant is disabled. Williams v. Bowen , 844 F.2d
748, 750-52 (10th Cir.1988). The claimant bears the burden of establishing a
prima facie case of disability at steps one through four. See id. at 751 & n.2. If
the claimant successfully meets this burden, the burden of proof shifts to the
Commissioner at step five to show that the claimant retains sufficient RFC to
perform work in the national economy, given her age, education, and work
experience. See id. at 751.
The ALJ determined that Plaintiff was not disabled. He found that she
could perform a wide range of sedentary work compromised only by certain
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physical and mental limitations to be discussed below. After deciding at step one
that Plaintiff had not engaged in significant gainful activity since her alleged
disability onset date, the ALJ found at step two that, individually or in
combination, Plaintiff’s alleged impairments were severe. At step three,
however, the ALJ found that Plaintiff’s impairments were not severe enough to
meet or to equal any of the listed impairments in the Social Security Regulations
that would require a finding that she was disabled.
At step four the ALJ found that Plaintiff retained the RFC to perform
sedentary work that involves “maximum lifting of ten pounds and no prolonged
walking or standing activities.” Aplt. App., Vol. II at 32. According to the ALJ,
Plaintiff could sit continuously for 90 minutes (six hours out of an eight-hour
day) and stand and walk continuously for 30 minutes (four hours out of an eight-
hour day). The ALJ also found that Plaintiff’s RFC is diminished by
non-exertional restrictions in that she can engage in “only occasional crawling,
reaching above shoulder level, pushing and pulling, fingering and grasping.”
Although Plaintiff can frequently stoop, crouch, squat, and climb stairs, she
cannot climb ladders, balance and work around dangerous machinery, or do a job
where driving is a major job requirement. The ALJ further found that Plaintiff
“should avoid exposure to temperature extremes, vibration, and concentration of
dust, fumes and chemicals.” Id.
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With regard to her mental limitations, the ALJ found that Plaintiff “retains
the attention, concentration, persistence and pace levels required for simple and
routine work tasks.” Id. She can perform work under general supervision, “but
needs to work in a low stress environment and avoid direct contact with the
general public and have only occasional interaction with co-workers.” Id.
Plaintiff is moderately restricted in “following work rules and responding to
supervision.” Id.
At step four the ALJ also determined that Plaintiff could not return to her
past relevant work as a checker/cashier, wedding coordinator, adult health aide,
occupational therapist, or director of occupational therapy. But at step five the
ALJ, using the Medical-Vocational Guidelines as a framework, see 20 C.F.R.
§ 404.1569 and Pt. 404, Subpart P, App. 2, Table No. 1, Rule 201.28, and also
relying on the testimony of a VE, concluded that Plaintiff was not disabled
because she could perform work as a call-out operator and a surveillance-system
monitor, both jobs existing in significant numbers.
The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner. Doyal v. Barnhart , 331
F.3d 758, 759 (10th Cir. 2003).
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II Standard of Review
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. Andrade v. Sec’y of Health & Human
Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal
quotation marks omitted). We consider whether the ALJ followed the “specific
rules of law that must be followed in weighing particular types of evidence in
disability cases,” Reyes v. Bowen , 845 F.2d 242, 244 (10th Cir. 1988), but we will
not reweigh the evidence or substitute our judgment for the Commissioner’s, see
Qualls v. Apfel , 206 F.3d 1368, 1371 (10th Cir. 2000).
III Discussion
1. Workers’ Compensation Finding
Plaintiff first argues that the Appeals Council erred in failing to give proper
consideration to a decision rendered by the Colorado Executive Department
finding Plaintiff permanently and totally disabled for workers’ compensation
purposes. Because the state agency decision did not become available until after
the hearing before the ALJ, Plaintiff submitted the evidence to the Appeals
Council, which made it a part of the record. See O’Dell v. Shalala , 44 F.3d 855,
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859 (10th Cir. 1994) (new evidence submitted to the Appeals Council becomes
part of the administrative record for purposes of judicial review).
We have held that “[a]lthough findings by other agencies are not binding on
the [Commissioner], they are entitled to weight and must be considered.” Baca v.
Dep’t of Health & Human Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (internal
quotation marks omitted). Assuming, without deciding, that the holding in Baca
applies to findings by state agencies, we agree with the district court that the
Appeals Council fulfilled its obligation to consider the workers’ compensation
decision.
Plaintiff has not pointed to any specific factual finding or evidence in the
state disability determination that should have changed the Appeals Council’s
decision. To the extent that the state agency differed from the ALJ in assessing
credibility, there is of course no reason why the Appeals Council must always
adopt the state agency’s view over that of the ALJ. Plaintiff complains that the
Appeals Council’s reference to the state proceeding was perfunctory – the
Appeals Council wrote only that it had considered the additional evidence
submitted “but concluded that neither the contentions nor the additional evidence
provides a basis for changing the Administrative Law Judge’s decision.” Aplt.
App., Vol. II at 7. Yet, our general practice, which we see no reason to depart
from here, is to take a lower tribunal at its word when it declares that it has
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considered a matter. See United States v. Kelly , 359 F.3d. 1302, 1304-05 (10th
Cir. 2004) (district court must consider certain factors before imposing prison
time for probation violation, but court need only say that it has done so); cf.
Andrews v. Deland , 943 F.2d 1162, 1170 (10th Cir. 1991) (refusing to “look
behind a district court’s express statement that it engaged in a de novo review of
the record”). We reject this claim of error.
2. RFC Findings
Plaintiff next argues that the ALJ’s findings regarding her RFC are not
based on substantial evidence because he did not cite any factors contradicting her
credibility and failed to give controlling weight to the opinions of her treating
physicians.
a. Credibility
The ALJ found that “claimant’s testimony is not fully credible to the extent
she alleges total disability and a total inability to sustain work activity.” Aplt.
App., Vol. II at 35. As support for this conclusion, the ALJ pointed to Plaintiff’s
daily activities and contradictions in her various reports regarding them. He also
cited medical evidence showing that her left upper extremity had stabilized and
that she had responded to conservative treatment for pain. And he noted that
Plaintiff’s mental impairments, while present to some degree, are “fairly well
controlled with medication,” as indicated by the medical evidence. Id. at 32.
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Our analysis of an ALJ’s credibility findings is guided by the opinion in
Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995), where we stated:
“Credibility determinations are peculiarly the province of the finder
of fact, and we will not upset such determinations when supported by
substantial evidence.” Diaz v. Sec’y of Health & Human Servs. , 898
F.2d 774, 777 (10th Cir. 1990). However, “[f]indings as to
credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Huston
[v. Bowen] , 838 F.2d [1125,] 1133 [(10th Cir. 1988)] (footnote
omitted); see also Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992) (ALJ “must articulate specific reasons for questioning the
claimant’s credibility” where subjective pain testimony is critical);
Williams [ex rel.] Williams v. Bowen , 859 F.2d 255, 261 (2d Cir.
1988) (“failure to make credibility findings regarding . . . critical
testimony fatally undermines the [Commissioner’s] argument that
there is substantial evidence adequate to support [her] conclusion
that claimant is not under a disability”).
After examining the record as a whole, we are persuaded that the ALJ’s
credibility findings are closely and affirmatively linked to substantial evidence.
Plaintiff’s argument to the contrary constitutes an invitation to this court to
engage in an impermissible reweighing of the evidence and to substitute our
judgment for that of the Commissioner, an invitation we must decline. See
Qualls , 206 F.3d at 1371.
b. Treating physicians
Plaintiff argues that the ALJ erred in refusing to accord controlling weight
to the opinions of two of her treating physicians: Dr. Kimata, a psychiatrist, and
Dr. Meyers, a treating psychologist. We disagree.
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Under the “treating physician rule,” the Commissioner will generally give
greater weight to the opinions of sources of information who have treated the
claimant than of those who have not. Langley v. Barnhart , 373 F.3d 1116, 1119
(10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)); see also 20 C.F.R.
§ 416.927(d)(2). The initial step in evaluating the opinion of a treating source is
to determine whether the opinion merits “controlling weight.” Langley , 373 F.3d
at 1119 (internal quotation marks omitted).
The analysis is sequential. The ALJ must first consider whether the
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” S.S.R. 96-2p, 1996 WL 374188,
at *2 (quotation omitted). If the answer to this question is “no,” then
the inquiry at this stage is complete. If the ALJ finds that the
opinion is well-supported, he must then confirm that the opinion is
consistent with other substantial evidence in the record. Id. In other
words, if the opinion is deficient in either of these respects, then it is
not entitled to controlling weight. Id.
Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003).
The ALJ refused to give controlling weight to some of the opinions
expressed by Dr. Kimata, rejecting certain limitations noted by Dr. Kimata in his
mental medical-source statement. That statement indicated that Plaintiff had
marked restrictions in her ability to interact appropriately with supervisors and
co-workers and was also markedly restricted in her ability to respond
appropriately to work pressures in a usual work setting and to changes in a
routine work setting.
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The ALJ rejected these limitations because
the reasons for such restrictions are subjective isolated reported
instances to Dr. Kimata by the claimant. In addition, these
restrictions are not supported by his own records which indicate
improvement and stabilization on medications. Also, Dr. Anderson
[-Oeser, another treating physician,] does not report such restrictions
in her treatment notes. Thus, more weight will be provided
Dr. Kimata’s written narrative reports than a checklist in which
certain ‘check marks’ conflict with his narrative reports as well as
Dr. Anderson’s.
Aplt. App., Vol. II at 32. Substantial evidence in the record supports the ALJ’s
decision to accord less than controlling weight to the referenced portion of
Dr. Kimata’s opinion.
With regard to the opinion of Dr. Meyers, a treating psychologist, the ALJ
rejected only Dr. Meyers’s opinion indicating marked impairment in Plaintiff’s
“ability to interact with supervisors and co-workers and to respond appropriately
to ordinary work pressures and routine changes in a typical work setting.” Id. at
30. The ALJ explained that Dr. Meyers’s opinion appeared to be based on
subjective complaints and isolated instances “rather than objective findings.” Id.
Also, the ALJ found that Dr. Meyers’s opinions contradicted the opinions of both
Dr. Kimata and Dr. Anderson-Oeser: “[The latter two doctors] reported
improvement in the claimant’s depressive and anxiety symptoms and did not find
that her mental impairments would totally preclude work activity. In December
2000, Dr. Anderson-Oeser reported that the claimant’s affect was normal and that
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she felt relatively stable on her medication.” Id. On the record before us, the
ALJ was free to reject Dr. Meyers’s opinion. See Watkins , 350 F.3d at 1300-01.
3. Conflict between the VE testimony and the DOT
Plaintiff’s final contention is that the ALJ misstated the testimony of the
VE and failed to reconcile the VE’s actual testimony with the Dictionary of
Occupational Titles (DOT), contrary to this court’s decision in Haddock v. Apfel ,
196 F.3d 1084 (10th Cir. 1999), and Social Security Ruling 00-4p, 2000 WL
1898704.
Haddock held that “before an ALJ may rely on expert vocational evidence
as substantial evidence to support a determination of nondisability, the ALJ must
ask the expert how his or her testimony as to the exertional requirement of
identified jobs corresponds with the Dictionary of Occupational Titles, and elicit
a reasonable explanation for any discrepancy on this point.” Id. at 1087.
Although this holding may seem to be limited to only discrepancies with respect
to exertional limitations, Haddock itself addressed both exertional and skill-level
limitations that conflicted with the DOT. Thus, whether the ALJ fulfilled his
duties regarding any conflict between the DOT job descriptions and Plaintiff’s
nonexertional limitations is also controlled by Haddock. Likewise, Social
Security Ruling 00-4p, which essentially codifies Haddock , requires a reasonable
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explanation for conflicts between a VE’s testimony and the DOT relating to any
“occupational information.” 2000 WL 1898704 at *2.
In his decision the ALJ said that the VE had admitted at the hearing that his
opinions about the jobs Plaintiff could do did not directly correspond with
information in the DOT. The ALJ then asserted that the VE explained this
discrepancy by relying on his own “education, experience and observations of the
jobs as actually performed in the economy.” Aplt. App., Vol. II at 34. As
Plaintiff and the district court have pointed out, however, there is no indication in
the record that the VE expressly acknowledged a conflict with the DOT or that he
offered any explanation for the conflict. The district court nevertheless ruled that
the ALJ’s assertion about the VE’s explanation was unnecessary because there
was no conflict between the VE’s testimony and the DOT. We agree with respect
to the “people” function of the designated jobs, but disagree with respect to the
required reasoning level.
a. “People” function
Plaintiff contends that the jobs identified by the VE are not available to her
because her RFC limits her to jobs that accommodate her need to “avoid direct
contact with the general public and have only occasional interaction with
coworkers,” Aplt. App. Vol. II at 35, whereas these jobs are defined in the DOT
as requiring significant work with people. We disagree.
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Each job listed in the DOT is described by reference to various
components. One component is “Worker Functions.” The worker function
labeled “People” expresses the degree of interaction with other people that the job
requires. Both jobs identified for Plaintiff – call-out operator and
surveillance-system monitor – have a people rating of 6, which means that they
require “[t]alking with and/or signaling people to convey or exchange information
[and] giving assignments and/or directions to helpers or assistants.” DOT, Vol. II
at 1006. The job descriptions for these two positions, however, indicate that
contact with people is rather limited. The DOT description for call-out operator
states:
Compiles credit information, such as status of credit accounts,
personal references, and bank accounts to fulfill subscribers’
requests, using telephone. Copies information onto form to update
information for credit record on file, or for computer input.
Telephones subscriber to relay requested information or submits data
obtained for typewritten report to subscriber.
DOT, Vol. I, 237.367-014 at 207. The description for surveillance-system
monitor states:
Monitors premises of public transportation terminals to detect
crimes or disturbances, using closed circuit television monitors, and
notifies authorities by telephone of need for corrective action:
Observes television screens that transmit in sequence views of
transportation facility sites. Pushes hold button to maintain
surveillance of location where incident is developing, and telephones
police or other designated agency to notify authorities of location of
disruptive activity. Adjusts monitor controls when required to
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improve reception, and notifies repair service of equipment
malfunctions.
Id. 379.367-010 at 281.
The ALJ expressly informed the VE that Plaintiff would be restricted to “no
direct public contact.” Yet the VE stated the two above jobs would be suitable,
saying: “[The] jobs . . . are fairly solitary jobs. The call-out operator being
indirect contact via telephone.” Aplt. App., Vol. II at 59. We see no conflict
between the DOT and this testimony. Nor do we see any conflict between the
DOT descriptions of the designated jobs and Plaintiff’s restriction to only
occasional interaction with co-workers.
b. Reasoning level
The DOT states that both surveillance-system monitor and call-out operator
require a reasoning level of three, defined as the ability to “[a]pply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic
form [, and d]eal with problems involving several concrete variables in or from
standardized situations.” DOT, Vol. II at 1011; see id. , Vol. I at 281
(categorizing surveillance-system monitor as requiring level-three reasoning); id.
at 207 (same with regard to call-out operator).
Plaintiff argues that her RFC, as found by the ALJ, is incompatible with
jobs requiring a reasoning level of three. The ALJ’s findings with regard to
Plaintiff’s RFC include: “Mentally, [Plaintiff] retains the attention, concentration,
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persistence and pace levels required for simple and routine work tasks.” Aplt.
App., Vol. II at 32. This limitation seems inconsistent with the demands of
level-three reasoning. See Lucy v. Chater , 113 F.3d 905, 909 (8th Cir. 1997)
(rejecting contention that a claimant limited to following only simple instructions
could engage in the full range of sedentary work because many unskilled jobs in
that category require reasoning levels of two or higher). We note that level-two
reasoning requires the worker to “[a]pply commonsense understanding to carry
out detailed but uninvolved written or oral instructions [and d]eal with problems
involving a few concrete variables in or from standardized situations.” DOT, Vol.
II at 1011. This level-two reasoning appears more consistent with Plaintiff’s
RFC.
We therefore must reverse this portion of the ALJ’s decision and remand to
allow the ALJ to address the apparent conflict between Plaintiff’s inability to
perform more than simple and repetitive tasks and the level-three reasoning
required by the jobs identified as appropriate for her by the VE. To reverse and
remand on this ground almost four years after the hearing before the ALJ is
unfortunate. Plaintiff was represented by counsel at the hearing; and had this
conflict been raised at that time, the ALJ could have responded by explaining or
changing his ruling. Indeed, there is nothing in the record before us to indicate
that the conflict was raised until the district court proceeding that commenced two
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years after the ALJ hearing. The Supreme Court has ruled, however, that a
plaintiff challenging a denial of disability benefits under 42 U.S.C. § 405(g) need
not preserve issues in the proceedings before the Commissioner or her delegates.
See Sims v. Apfel , 530 U.S. 103 (2000).
IV Conclusion
The judgment of the district court is AFFIRMED in part and REVERSED
in part, and the case is REMANDED with directions to REMAND to the agency
for additional proceedings consistent with this disposition.
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Hackett v. Barnhart
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-01-24
Citations: 395 F.3d 1168
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