Smith v. Colvin

FILED

United States Court of Appeals

Tenth Circuit

May 9, 2016

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LAURIE SMITH,

Plaintiff - Appellant,

v. No. 15-1224

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant - Appellee.

_________________________________

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:14-CV-02398-CMA)

_________________________________

Submitted on the briefs. *

Loren M. Lambert, Arrow Legal Solutions, LLC, Midvale, Utah, for Plaintiff-

Appellant.

Michael A. Thomas, Special Assistant United States Attorney, Social Security

Administration, Denver, Colorado, for Defendant-Appellee.

_________________________________

*

Ms. Laurie Smith, the plaintiff, has requested oral argument. But we do not

believe oral argument would materially aid us in deciding the appeal. As a result,

we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2)(C);

10th Cir. R. 34.1(G).

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

_________________________________

BACHARACH, Circuit Judge.

_________________________________

This appeal involves a claim against the Social Security Administration for

disability benefits. The plaintiff, Ms. Laurie Smith, alleged disability based in

part on

! impingement of her left shoulder,

! restrictions on her ability to (1) reach and (2) handle and finger

objects, and

! moderate nonexertional limitations.

The administrative law judge concluded that Ms. Smith could work as a

telequotation clerk, surveillance systems monitor, or call-out operator. As a

result, the judge concluded that Ms. Smith was not disabled. Ms. Smith appealed

to the district court, which upheld the administrative law judge’s determination.

Ms. Smith appeals to our court, and we affirm.

1. We engage in de novo review, upholding the administrative law judge’s

findings as long as they were supported by substantial evidence and

were not based on a misapplication of law.

In this appeal, we engage in de novo review of the district court’s ruling.

Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). In conducting de novo

review, we must determine whether the administrative law judge correctly applied

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legal standards and made findings supported by substantial evidence. Mays v.

Colvin, 739 F.3d 569, 571 (10th Cir. 2014). But in making this determination, we

cannot reweigh the evidence or substitute our judgment for the administrative law

judge’s. Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013).

2. The administrative law judge did not fail to consider the left shoulder

impingement.

The Social Security Administration has established a five-step process for

consideration of disability claims. 20 C.F.R. § 416.920(a)(4). At the second step,

the administrative law judge is to consider whether an impairment is severe. Id.

§ 416.920(a)(4)(ii). If the impairment is severe, the judge must continue to

consider the impairment through the third, fourth, and fifth steps. Id.

§ 416.920(a)(4)(iii)-(v). If the claimant has no severe impairments, the judge can

end the review at the second step. Allman v. Colvin, 813 F.3d 1326, 1330 (10th

Cir. 2016).

Ms. Smith contends that the administrative law judge misapplied this

process when confronted with evidence of a left shoulder impingement. The judge

found severe impairments at step two, but did not mention a left shoulder

impairment as one of these severe impairments. Ms. Smith regards that omission

as an error, pointing to evidence of a Type II acromion with arthrosis of the

acromioclavicular joint, a supraspinatus portion tear of the rotator cuff, and a

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complete tear of the superior labrum. Appellant’s Opening Br. at 4, 18 (citing

App’x at 260-63, 265-73, 468).

If the judge erred, however, the error would be harmless. Having found

severe impairments at step two, the judge went on to consider Ms. Smith’s

residual functional capacity. As a result, a failure to include the left shoulder

impingement as a severe impairment would not have affected the outcome. In

these circumstances, any error at step two would have been harmless. See Allman

v. Colvin, 813 F.3d at 1330 (“[T]he failure to find a particular impairment severe

at step two is not reversible error when the [administrative law judge] finds that at

least one other impairment is severe.”).

Though the administrative law judge did not mention a left shoulder

impingement at step two, he apparently found impairments in both shoulders

when assessing the residual functional capacity. There, for example, the judge

found a reduced range of motion in Ms. Smith’s shoulder joints and limited her

ability to lift and carry objects. Ms. Smith does not say what else a left shoulder

impingement would have prevented her from doing. As a result, we have no

reason to disturb the administrative law judge’s assessment of residual functional

capacity based on a failure to incorporate limitations from a left shoulder

impingement.

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3. The administrative law judge did not err in failing to consider Dr.

Common’s opinions on (1) the necessity of breaks and (2) the ability to

lift and carry.

Ms. Smith was examined by Dr. Kelly Common, who expressed opinions

including a need for breaks and limitations on the ability to lift and carry.

According to Ms. Smith, these opinions were not adequately discussed in the

administrative law judge’s decision. We disagree.

In discussing a need for breaks, Ms. Smith apparently misread Dr.

Common’s report. Dr. Common stated that Ms. Smith could stand and walk for

four hours at a time, but would need breaks every half-hour. App’x at 75, 468.

Ms. Smith apparently read Dr. Common’s report to require half-hour breaks for

any kind of work activity. We read Dr. Common’s report differently, requiring

half-hour breaks only when Ms. Smith were to stand or walk for four hours. The

administrative law judge apparently read the report the same way. This reading of

Dr. Common’s report was permissible.

Ms. Smith also contends that Dr. Common and the administrative law judge

disagreed on how much Ms. Smith could lift or carry. Dr. Common said that Ms.

Smith could carry and lift less than ten pounds. Id. The administrative law judge

found that Ms. Smith could lift and carry up to ten pounds, but no more. See

App’x at 28 (finding an ability to perform sedentary work); see also 20 C.F.R.

§ 416.967(a) (defining sedentary work).

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The difference involves semantics. In one place, Dr. Common said that Ms.

Smith could lift and carry less than ten pounds. App’x at 75. In another place on

the same report, Dr. Common rated the limitation on lifting and carrying as ten

pounds. Id. at 76. The administrative law judge found that Ms. Smith could lift

and carry up to ten pounds, which is essentially what Dr. Common said.

In fact, the administrative law judge’s findings matched Ms. Smith’s

testimony. Ms. Smith testified that she had trouble lifting or carrying anything

over ten pounds. Id. at 44. We cannot fault the administrative law judge for

finding precisely the same limitation asserted by Ms. Smith in her testimony.

4. The administrative law judge did not fail to properly weigh Dr.

Common’s opinions on fingering and handling objects.

Ms. Smith also claims that the administrative law judge should have found

greater limitations in the ability to finger and handle objects. This claim is based

on Dr. Common’s opinion, which included restrictions on the frequency and

repetition of fingering and handling objects. In our view, the administrative law

judge did not err.

The judge had two conflicting opinions on fingering, handling, and feeling.

The first opinion was by Dr. Common, who expressed an opinion that Ms. Smith

could finger and handle objects only on occasion and without repetition. Id. at

468. The second opinion was by Dr. James McElhinney. He reviewed Dr.

Common’s opinion, but concluded that Ms. Smith could finger and feel objects

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without any restrictions. Id. at 76. Faced with the conflicting opinions, the

administrative law judge adopted a middle ground. Rather than finding only an

occasional ability to finger and handle (Dr. Common) or an unlimited ability to

finger and feel (Dr. McElhinney), the administrative law judge found that Ms.

Smith could frequently finger and handle objects. Id. at 28. In addition, the judge

implicitly followed Dr. McElhinney’s opinion that Ms. Smith needed no

restrictions on repetitive movements. Id. In this manner, the judge arrived at an

assessment between the two medical opinions without fully embracing either one.

We upheld this approach in Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir.

2012). Under Chapo, the judge did not err in declining to fully incorporate Dr.

Common’s limitations on fingering and handling.

5. The administrative law judge did not err in assessing the impact of

moderate nonexertional impairments.

Ms. Smith also argues that the administrative law judge should have

included moderate nonexertional impairments in assessing residual functional

capacity. This argument is based on Dr. Gayle Frommelt’s evaluation. Dr.

Frommelt reviewed records and opined that Ms. Smith was moderately limited in

her ability to

! maintain concentration, persistence, and pace,

! remain attentive and keep concentration for extended periods,

! work with others without getting distracted,

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! complete a normal workday and workweek without

interruption for psychologically based systems,

! perform at a consistent pace without excessive rest periods,

! accept instructions and respond appropriately to criticism by

supervisors,

! get along with coworkers or peers without distracting them or

engaging in behavioral extremes,

! respond appropriately to changes in the workplace, and

! set realistic goals or independently plan.

App’x at 78-79. Dr. Frommelt applied these assessments, concluding that Ms.

Smith could (1) engage in work that was limited in complexity and (2) manage

social interactions that were not frequent or prolonged. Id. at 80. 1

The administrative law judge arrived at a similar assessment, concluding

that Ms. Smith (1) could not engage in face-to-face contact with the public and

(2) could engage in only simple, repetitive, and routine tasks. Id. at 28. Through

1

When answering questions on a form, Dr. Frommelt indicated that the

limitations were moderate. App’x at 79-80. But the form explained that the

questions provided only an aid to assess Ms. Smith’s capacity. The form

instructed Dr. Frommelt to assess the residual functional capacity in a narrative.

Id. at 78. In that narrative, Dr. Frommelt assessed only limitations affecting the

ability to engage in complex work and to engage in social interactions that were

frequent or prolonged. Id. at 80; see Vigil v. Colvin, 805 F.3d 1199, 1203 (10th

Cir. 2015) (“The [administrative law judge’s] finding of a moderate limitation in

concentration, persistence, or pace at step three does not necessarily translate to a

work-related functional limitation for the purposes of the [assessment of residual

functional capacity].”).

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these findings, the administrative law judge incorporated the functional

limitations of Ms. Smith’s moderate nonexertional impairments. 2

We addressed a similar issue in an unpublished opinion, Lee v. Colvin. No.

15-6027, 2015 WL 7003410 (10th Cir. Nov. 12, 2015) (unpublished). There a

psychologist assessed moderate limitations in the claimant’s ability to maintain

attention and concentration for extended periods, to accept instructions and

respond appropriately to supervisors’ criticism, and to get along with coworkers

or peers without distracting them or exhibiting behavioral extremes. 2015 WL

7003410, at *2-3. The administrative law judge did not expressly incorporate

these moderate limitations in the assessment of residual functional capacity.

Instead, the administrative law judge found that the claimant was limited to

simple tasks and work requiring only routine supervision or only superficial

interaction with supervisors and peers. Id. at *3. In light of these findings, we

rejected the claimant’s challenge to the omission of moderate limitations in the

administrative law judge’s assessment of residual functional capacity. Id. In

rejecting this challenge, we reasoned that the administrative law judge had

2

Ms. Smith questions how the administrative law judge’s assessment

incorporates the numerous moderate limitations indicated by Dr. Frommelt.

Appellant’s Opening Br. at 31-32. This is the wrong question. As discussed

above, Dr. Frommelt’s notations of moderate limitations served only as an aid to

her assessment of residual functional capacity. We compare the administrative

law judge’s findings to Dr. Frommelt’s opinion on residual functional capacity,

not her notations of moderate limitations.

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incorporated the moderate limitations in the course of assessing the claimant’s

residual functional capacity. Id.

Though Lee v. Colvin is not precedential, it is persuasive. The

administrative law judges in Lee and in our case did not repeat the moderate

limitations assessed by the doctor. But both administrative law judges

incorporated these limitations by stating how the claimant was limited in the

ability to perform work-related activities.

This approach is acceptable in our circuit, for we have held in a published

opinion that an administrative law judge can account for moderate limitations by

limiting the claimant to particular kinds of work activity. See Vigil v. Colvin, 805

F.3d 1199, 1204 (10th Cir. 2015) (“[T]he [administrative law judge] accounted

for [the claimant’s] moderate concentration, persistence, and pace problems in his

[assessment of residual functional capacity] by limiting [the claimant] to

unskilled work.”). In Lee v. Colvin, we applied this approach, concluding that the

administrative law judge did not err by incorporating the moderate limitations in

restricting the claimant in jobs involving complex tasks, close supervision, or

meaningful interaction with supervisors or peers. Based on the reasoning in Lee v.

Colvin, we reject Ms. Smith’s argument that the administrative law judge should

have assessed additional nonexertional impairments. 3

3

As the defendant acknowledges, there is one difference between Dr.

Frommelt’s conclusion and the administrative law judge’s assessment: Dr.

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6. The administrative law judge did not err in failing to ask the

vocational expert about the effect of greater limitations.

Ms. Smith argues that the administrative law judge understated Ms. Smith’s

limitations when posing hypothetical questions to the vocational expert. We reject

this contention. The administrative law judge had to ask only about the effect of

those limitations ultimately assessed; the judge did not need to ask about the

effect of limitations that he didn’t believe applied. Bean v. Chater, 77 F.3d 1210,

1214 (10th Cir. 1995).

7. Ms. Smith’s challenge to the defendant’s factual statements does not

affect the outcome.

In her reply brief, Ms. Smith argues that the government (1) overstated her

level of activity, (2) erroneously suggested that she had failed to obtain medical

treatment when recommended, and (3) inappropriately suggested that Ms. Smith

had inflicted her own shoulder injury. These arguments do not affect the Court’s

analysis: We have decided the appeal based on what the administrative law judge

found, not the defendant’s factual statements in its response brief.

8. Disposition

We affirm.

Frommelt stated that Ms. Smith could manage social interactions that were not

frequent or prolonged, and the administrative law judge found that Ms. Smith

could not engage in personal contact with the public. App’x at 80. But Ms. Smith

has not argued that this difference was material.

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