Norris vs. Barnhart, No. 04-7113 (10th Cir. 2006)

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F IL E D United States Court of Appeals Tenth Circuit U N IT E D ST A T E S C O U R T O F A PP E A L S September 26, 2006 FO R T H E T E N T H C IR C U IT Elisabeth A. Shumaker Clerk of Court M ARY A. NORR IS, Plaintiff-Appellant, v. JO A NN E B. BA RN HA RT, Com m issioner of the Social Security Adm inistration, No. 04-7113 (D.C. No. 03-CV-514-W ) ( E.D. Okla.) Defendant-Appellee. O R D E R A N D JU D G M E N T * Before O B R IE N , H O L LO W A Y , and B A L D O C K , Circuit Judges. After examining the briefs and appellate record, this panel has determ ined unanim ously to grant the parties request for a decision on the briefs without oral argum ent. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered subm itted without oral argum ent. Claim ant M ary A. Norris appeals the district court s affirm ance of the Com m issioner s decision denying her Supplem ental Security Incom e benefits * This order and judgm ent is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgm ents; nevertheless, an order and judgm ent m ay be cited under the term s and conditions of 10th Cir. R. 36.3. (SSI) under Title XVI of the Social Security Act. W e have jurisdiction over this appeal pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we reverse. This appeal is taken from the denial of N orris s second application for SSI. On June 27, 2000, the Social Security A dm inistration (SSA) denied her first application, which had a protective filing date of A pril 12, 2000, and Norris pursued the claim no further. Aplt. App. at 12. In her second application, which has a protective filing date of February 18, 2002, Norris alleged disability based on problems with her feet and back, holes in her stom ach, num bness in her hands and arm s, allergies, hearing problem s, surgeries, and depression. Id. at 94. The SSA denied her second application initially and upon reconsideration. At step five of the five-step sequential evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential process for evaluating claim s for disability benefits), an administrative law judge (ALJ) determined that she retained the residual functional capacity (RFC) to perform a limited range of sedentary work that existed in significant numbers in the regional and national economies and denied benefits. The Appeals Council denied review , m aking the ALJ s decision the Com m issioner s final decision. O Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). This court reviews the Com m issioner s decision to determ ine whether the factual findings are supported by substantial evidence in the record and whether -2- the correct legal standards were applied. W atkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted). On appeal, Norris contends that the ALJ erred when he (1) formulated an RFC that did not include all of her physical and mental limitations, and (2) failed to explain the manner in which the vocational expert (VE) deviated from the Dictionary of Occupational Titles 1 when identifying other jobs that Norris could perform. I. E rror in R FC Form ulation The ALJ found that Norris retained the following RFC: [S]edentary work: except for work requiring sitting longer than 45 m inutes at a tim e or m ore than occasional stooping, or requiring kneeling or squatting. The claim ant can perform sim ple, routine tasks and maintain attention within custom ary tolerances, interact appropriately with co-workers and supervisors on a superficial level, and adapt to changes in the work setting. Aplt. App. at 14. Norris contends that this RFC failed to account for all of her physical and m ental lim itations. A . Physical lim itations. 1 U.S. Dep t of Labor, Em ploym ent & Training Adm in., Dictionary of Occupational Titles (4th ed. 1991). -3- Norris argues that the RFC assessm ent does not properly account for her bending and stooping lim itations. She first asserts that the ALJ did not state what weight, if any, he assigned to the opinion of Dr. Kilgore, a state agency consultative exam iner, concerning back pain and drainage from an old incisional hernia repair. She argues that this violates Social Security Ruling (SSR ) 96-6p, which states that an ALJ may not ignore the opinions of state agency medical and psychological consultants and must explain the weight given to the opinions in their decisions. SSR 96-6p, 1996 W L 374180 at *2. She also contends that the ALJ should have discussed the effect of bending and stooping on the incisional drainage, particularly in view of her testim ony that this m ade the drainage worse. She argues that the ALJ erred by not giving the opinion of her treating physician, Dr. Hillis, either substantial weight, as required by Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987), or controlling weight, as required by 20 C.F.R. § 416.927(d)(2). 2 Dr. H illis treated her for a ventral hernia in 1997-98. Aplt. App. at 219-227. W e disagree that the ALJ ignored Dr. Kilgore s opinion. It is apparent that he relied on it because he reviewed it as part of the medical evidence that supported his RFC determ ination. Id. at 14. W e also disagree that the ALJ was 2 Although Norris cites to the identical 20 C.F.R. § 404.1527(d)(2) on this point, w e note that the regulations applicable to her claim for SSI under Title X V I of the Social Security Act are set forth in 20 C.F.R. Ch. III, part 416. See 20 C.F.R. § 416.101. -4- required to state the weight attributed to the opinions of Dr. Kilgore and Dr. Hillis. An ALJ is required to review all of the evidence relevant to [a] claim and make findings about what the evidence shows. 20 C.F.R. § 416.927(c). If all of the evidence we receive, including all m edical opinion(s), is consistent, and there is sufficient evidence for us to decide w hether you are disabled, we will m ake our determ ination or decision based on that evidence. Id. § 416.927(c)(1). If any of the evidence in your case record, including any m edical opinion(s), is inconsistent with other evidence or is internally inconsistent, we will weigh all of the evidence and see whether we can decide whether you are disabled based on the evidence we have. Id. § 416.927(c)(2). It is clear from the foregoing regulations that, if all of the medical evidence is consistent, the ALJ is not required to state the weight attributed to each opinion, and SSR 96-6p s requirement to state the weight given to the opinions of state agency consultants is inapplicable. Sim ilarly, the ALJ need not determ ine whether a treating physician s opinion is entitled to either controlling or substantial weight, or w eigh it against other consistent, supportive evidence. Here, the ALJ determ ined Norris s RFC, then stated that the medical evidence provides ample support for this conclusion. Aplt. App. at 14. He went on to describe the medical records of her physical im pairm ents in detail, all of which are consistent in that they identify only m inimal problem s associated with -5- her ongoing complaints of incisional drainage. 3 For example, Dr. Hillis observed prior to her 1997 hernia operation that she has a draining sinus tract. Id. at 220. After the operation, he observed that she has a sm all area of skin which is not healing. She indicates that she has had pain and drainage since her repair. . . . The wound is w ell healed other than a 1-2 cm area centrally where there is superficial denuding. . . . [N]o draining sinus tract can be identified. Id. at 219. In 2002, Dr. Kilgore observed that Norris had a m inim al amount of drainage from a sm all incision in her abdom en. Id. at 121. The ALJ s failure to state the specific weight he gave to the opinions of Dr. Kilgore or Dr. Hillis, therefore, was not error. Nothing in these opinions suggests that the ALJ should have formulated a more restrictive RFC. 4 W e also find no error in the ALJ s failure to m ention Norris s testim ony that bending increases the pain and drainage from her incisional wound. An ALJ 3 Even Norris states that there is clearly no contradictory m edical evidence which would justify rejecting or ignoring the opinions of doctors who had treated Norris in emergency room s and hospitals. Aplt. Br. at 16. 4 Norris s self-reported history of chronic back pain m ade worse by bending and stooping is contained in the History of Present Illness section of Dr. Kilgore s report. Aplt. App. at 119. Therefore, this is not an opinion that the ALJ was required to address. See 20 C.F.R. § 416.927(a)(2) ( M edical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgm ents about the nature and severity of your im pairm ent(s), including your sym ptom s, diagnosis and prognosis, what you can still do despite im pairm ent(s), and your physical or m ental restrictions. ). Contrary to the Com m issioner s position, Dr. Hillis s records do contain medical opinions because he m akes statem ents that reflect judgm ents about Norris s sym ptom s. See id. -6- is not required to address every piece of evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). W hen the ALJ does not need to reject or weigh evidence unfavorably in order to determ ine a claim ant s RFC, the need for express analysis is weakened. Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004). Here, Norris testified that the more I m ove the more this [pointing to her wound] gets sore . . . [i]t starts oozing m ore and more, and it will start having red streaks shoot out of it. Aplt. App. at 43. She also testified that in 1997-98 her doctors told her not to be lifting or straining anything to aggravate it. Id. at 37. This testim ony does not describe disabling pain or any specific lim itations on m ovement or functioning that would require a more restrictive hypothetical than the one the ALJ posed to the vocational expert, which limited her to sedentary work and only occasional forw ard stooping or bending, id. at 51. The ALJ based the physical lim itations portion of his RFC determ ination on the reports of Dr. Kilgore and Dr. Hillis, each of whom identified only m inim al problems with drainage from her incisional hernia repair and no functional lim itations. Norris has pointed to no other evidence that suggests a m ore restrictive RFC. Therefore, the ALJ did not need to reject her testim ony or weigh it unfavorably in order to determ ine her RFC or find her not disabled at step five of the sequential evaluation process, and his failure to m ention it is not error. Norris contends that the ALJ erred by failing to address m edical records from the W adley Regional M edical Center. W e disagree. Those records, id. at -7- 222-27, contain inform ation about her ventral hernia operation in 1997. The ALJ addressed this operation in his discussion of the records of Dr. Hillis, who perform ed the procedure. The additional records m erely recite the details of her procedure and do not underm ine the accuracy of the ALJ s RFC finding. Likewise, we find no error in the ALJ s failure to discuss certain records from M cCurtain M em orial Hospital to which Norris directs our attention: a diagnosis of acute m yofascial strain and acute lower back pain, id. at 165, and an x-ray report indicating m ild narrowing of the L5-S1 intervertebral disc space, id. at 168. Those records, which contain m inimal inform ation, are consistent with Dr. Kilgore s opinion that, among other severe im pairm ents, she has chronic low back pain, which the A LJ considered. Therefore, the A LJ did not need to discuss them . See Howard, 379 F.3d at 947. Nothing in the M cCurtain records contradicts the RFC found by the A LJ. B . M ental lim itations. Norris asserts that the ALJ failed to indicate the weight he attributed to the opinion of examining state agency consultant Dr. Otero, failed to mention two evaluations perform ed by Dr. Sm allwood, Ph.D, a non-examining state agency consultant, and failed to account in his RFC determ ination for all the lim itations Dr. Otero and Dr. Sm allwood found. Although w e find that the A LJ did address Dr. Sm allwood s evaluations, we agree that he failed to account for them fully in his RFC determ ination. -8- Dr. Otero opined that Norris could m aintain socially appropriate behavior, apparently despite his diagnosis of panic disorder w ith agoraphobia. Id. at 140. The ALJ noted this opinion twice in his decision, id. at 15, 16-17, and it is evident that he relied on it in determ ining Norris s RFC. Dr. Sm allwood concluded that Norris w as not significantly limited in her ability to m aintain socially appropriate behavior, but that she was m oderately 5 limited in her ability to interact appropriately with the general public. Id. at 144. The abilities to interact appropriately with the general public and to m aintain socially appropriate behavior are listed on the M ental Residual Functional Capacity Assessm ent form com pleted by Dr. Sm allwood as separate com ponents of social interaction, id. at 144, and thus describe two separate m easurements of m ental functioning. The ALJ, therefore, did not need to weigh the opinions of D r. O tero and Dr. Sm allw ood because they are not inconsistent. However, he erred by failing to address Dr. Sm allwood s public-interaction lim itation in his hypothetical to the VE and in his RFC determ ination. See Clifton, 79 F.3d at 1010 ( [I]n addition to discussing the evidence supporting his decision, the ALJ also m ust discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects. ). This failure is 5 W e note that, in his decision, the ALJ m isstated this lim itation as m arked rather than m oderate. Aplt. App. at 15. Although it does not affect our analysis, it renders the ALJ s om ission of this lim itation from the RFC even more puzzling. -9- significant because som e, if not all, of the jobs identified by the VE appear to require interaction with the general public. Those jobs m ight have been excluded if the public interaction lim itation had been included in Norris s RFC, which m ight have affected the ALJ s determ ination at step five of the five-step sequential evaluation process. II. D eviation from the D ictionary of O ccupational Titles Norris argues that the ALJ erred when he failed to explain the manner in which the VE deviated from the Dictionary of Occupational Titles (DOT) when identifying jobs that she could perform based on her sedentary RFC. W e agree. W e have held that an ALJ m ust investigate and elicit a reasonable explanation for any conflict between the [DOT] and expert testim ony before the ALJ m ay rely on the expert s testim ony as substantial evidence to support a determ ination of nondisability. Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). In Haddock, we provided two examples of a reasonable or valid explanation for the conflict between VE testim ony and the DOT: (1) the job the VE is testifying about is not included in the [DOT], but is docum ented in som e other acceptable source ; and (2) a specified num ber or percentage of a particular job is perform ed at a lower RFC level than the [DOT] shows the job generally to require. Id. at 1091-92. In response to our holding in Haddock, the SSA issued SSR 00-4p. See Rescission of Social Security Acquiescence Ruling 00-3(10), 65 Fed. Reg. 75758, -10- 75758 (D ec. 4, 2000) (discussing the relationship of SSR 00-4p, issued that sam e day, to Haddock). SSR 00-4p requires an ALJ to resolve conflicts between the D O T and a V E s testimony by determining if the explanation given by the VE . . . is reasonable and provides a basis for relying on the VE . . . testim ony rather than on the D O T inform ation. SSR 00-4p, 2000 W L 1898704, at *2. Here, the VE stated that the DOT listed cashier II in the light exertional category, whereas the Bureau of Labor Statistics in the 2000 census identifies this job with these numbers existing at the sedentary level as well as the light exertion level. Aplt. App. at 53. This explanation is sim ilar to the second explanation we noted in Haddock. See Haddock, 196 F.3d at 1091-92. After confirm ing that the number of cashier II jobs the VE identified was only at the sedentary level, the ALJ admitted that he did not know enough about the Bureau of Labor Statistics to ask a follow-up question. Aplt. App. at 53. This comm ent indicates that he accepted the V E s explanation without determining if there was a basis for relying on it, as required by SSR 00-4p. 6 Therefore, the explanation was 6 Because it appears that the VE s source may have been a publication of som e sort, the explanation m ay have been rendered reasonable if the ALJ determ ined that the source was a reliable publication. See SSR 00-4p, 2000 W L 1898704, at *2 (stating that reasonable explanations include those based on inform ation in reliable publications other than the DOT). W e do not suggest that a reasonable explanation m ust identify a specific source or be based on a reliable publication, only that, in this case, the ALJ s lack of familiarity with the source on which the VE based his explanation prevented him from m aking the required reliability determ ination. -11- not reasonable, and the ALJ was not entitled to rely on it as substantial evidence in support of his determ ination of nondisability, see Haddock, 196 F.3d at 1091. 7 The district court determ ined that the ALJ s failure to elicit a reasonable explanation from the V E w as not reversible error because the ALJ identified tw o other jobs, surveillance system m onitor (700 to 1000 jobs regionally and 65,000 to 85,000 nationally) and food and beverage order taker (600 jobs regionally and 125,000 nationally), that exist in significant num bers. Aplt. A pp. at 279-80. Based on our conclusion that the ALJ did not address Dr. Sm allwood s opinion properly, we decline to affirm the A LJ s decision on this basis. The A LJ s treatment of Dr. Sm allwood s opinion m ay affect Norris s RFC, which in turn m ay affect her ability to perform one or both of those jobs. Additionally, it is unclear from the decision whether he found that the num bers of each of those jobs, standing alone, constituted a significant num ber within the meaning of 42 U.S.C. § 423(d)(2)(A ). Given the fairly sm all num ber of those two jobs, it m ay be necessary for the ALJ to give consideration to the factors that should direct an ALJ s resolution of the significant num ber inquiry. See Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992). Consideration of these factors 7 W e note that, in his decision, the ALJ erroneously stated that there was no deviation between the VE s testim ony and the DOT. Aplt. App. at 18. Because we conclude that the ALJ failed to elicit a reasonable explanation from the VE at the hearing, we need not reach his additional failure to explain in the determ ination or decision how he . . . resolved the conflict. SSR 00-4p, 2000 W L 1898704, at *4. -12- m ay be particularly important in view of the ALJ s finding that Norris cannot sit for m ore than forty-five minutes at a tim e, which may preclude her from driving long distances to work. C onclusion In sum m ary, we conclude that the ALJ applied the correct legal standards in determ ining the physical lim itations on Norris s RFC, and those lim itations were supported by substantial evidence. However, he applied the incorrect legal standards in determ ining the mental lim itations on Norris s RFC and in relying on the V E s testim ony concerning the cashier II job. On remand, the A LJ must address Dr. Sm allwood s opinion concerning the limitations on Norris s ability to interact with the general public. The ALJ also m ust elicit a reasonable explanation for the conflict between the VE s testim ony and the DOT concerning the exertional level of the cashier II jobs, unless Dr. Sm allwood s opinion alters the RFC and the VE s testim ony concerning whether N orris can perform that job. He also should explain in his decision how he resolved that conflict. The judgm ent of the district court is R E V E R S E D , and the case is R E M A N D E D to the district court with directions to remand the case to the agency for further proceedings consistent with this O rder and Judgm ent. Entered for the Court W illiam J. Holloway Circuit Judge -13-

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