Filed: Sep. 18, 2012
Latest Update: Mar. 26, 2017
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS September 18, 2012 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court PENNIE L. KEYES-ZACHARY, Plaintiff-Appellant, v. No. 11-5152 MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:10-CV-00529-TLW) Submitted on the briefs:* Timothy M. White and Richmond J. Brownson, Tul
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS September 18, 2012 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court PENNIE L. KEYES-ZACHARY, Plaintiff-Appellant, v. No. 11-5152 MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:10-CV-00529-TLW) Submitted on the briefs:* Timothy M. White and Richmond J. Brownson, Tuls..
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 18, 2012
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
PENNIE L. KEYES-ZACHARY,
Plaintiff-Appellant,
v. No. 11-5152
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:10-CV-00529-TLW)
Submitted on the briefs:*
Timothy M. White and Richmond J. Brownson, Tulsa, Oklahoma, for
Plaintiff-Appellant.
Thomas Scott Woodward, United States Attorney, Cathryn McClanahan, Assistant
United States Attorney, Michael McGaughran, Regional Chief Counsel, Region VI,
Virginia Watson Keyes, Special Assistant United States Attorney, Office of General
Counsel, Region VI, Social Security Administration, Dallas, Texas, for
Defendant-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, ANDERSON, and O'BRIEN, Circuit Judges.
HARTZ, Circuit Judge.
Pennie L. Keyes-Zachary appeals from an order of the district court affirming
the Commissioner’s decision denying her applications for Social Security disability
and Supplemental Security Income benefits. Ms. Keyes-Zachary’s protected filing
date was June 7, 2004. She alleges disability based on, among other things, neck,
back, shoulder, elbow, wrist, hand, and knee problems, accompanied by pain; hearing
loss; urinary frequency; anger-management problems; depression; and anxiety.
This case has a rather lengthy procedural history. After the agency denied her
2004 applications initially and on reconsideration, Ms. Keyes-Zachary received her
first hearing before an administrative law judge (ALJ) on July 18, 2006. She testified
at the hearing to her medical condition and limitations. The ALJ upheld the denial of
her application for benefits. The Appeals Council denied her request for review of
the ALJ’s decision, and she then appealed to the district court. The district court
remanded the case to the ALJ for further consideration.
On September 22, 2009, the ALJ held a second hearing, at which
Ms. Keyes-Zachary again testified. In his decision following this hearing, the ALJ
determined that she retained the residual functional capacity (RFC) to perform light
work, defined in 20 C.F.R. § § 404.1567(b) and 416.967(b), with certain restrictions.
He elaborated:
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[T]he claimant is able to lift and/or carry 20 pounds, stand and/or walk
6 hours in an 8 hour workday at 30 minute intervals, sit 6 hours in an
8 hour workday at 2 hour intervals, and she is limited in her ability to
climb and squat. The claimant is able to occasionally bend, stoop,
crouch, crawl, operate foot controls, push and/or pull with her right
upper extremity, reach overhead with her right upper extremity, and
twist/nod her head. The claimant is slightly limited in her ability to
finger, feel and grip with her right upper extremity and she should avoid
fine vision, low noise, dust, fumes and gases, rough uneven surfaces,
unprotected heights, fast and dangerous machinery, and heat/wet
environments and she requires easy accessibility to rest rooms.
Additionally, the claimant is able to perform simple, repetitive and
routine tasks and is slightly limited in reference to contact with the
general public, co-workers and supervisors.
Aplt. App., Vol. 3 at 469.
The ALJ found that Ms. Keyes-Zachary could not return to her past relevant
work as a cook’s helper, stuffer, sewer, inspector, and retail cashier/stocker, but that
considering her age, education, work experience, and RFC, there were jobs
existing in significant numbers in the national economy that she could perform, such
as arcade attendant, bench assembler, order clerk, or clerical mailer. Applying the
Medical-Vocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.18 as a
framework, the ALJ concluded that Ms. Keyes-Zachary was not disabled within the
meaning of the Social Security Act. The Appeals Council declined jurisdiction,
making the ALJ’s decision the Commissioner’s final decision.
We review the Commissioner’s decision to determine whether the ALJ’s
“factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140
(10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable
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mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks omitted).
On appeal Ms. Keyes-Zachary raises two issues. She first argues that the ALJ
“failed to properly consider, evaluate and discuss the medical source evidence.”
Aplt. Br. at 16. Second, she contends that the ALJ “failed to perform a proper
credibility determination.” Id. at 21. She also presents a number of subissues and
arguments, many of them poorly developed. We will consider and discuss only those
of her contentions that have been adequately briefed for our review. See Chambers v.
Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (“The scope of our review . . . is
limited to the issues the claimant . . . adequately presents on appeal.” (internal
quotation marks omitted)).
I. ALJ’s evaluation of medical-source evidence
A. ALJ’s weighing of medical opinions
We begin with Ms. Keyes-Zachary’s argument about the medical-source
evidence. The centerpiece of this argument is her contention that the ALJ failed to
weigh the medical opinions in the file.
It is the ALJ’s duty to give consideration to all the medical opinions in the
record. See 20 C.F.R. §§ 404.1527(c), 416.927(c). He must also discuss the weight
he assigns to such opinions. See id. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii) (“[T]he
administrative law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or other program
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physician, psychologist, or other medical specialist, as the administrative law judge
must do for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.”).
Ms. Keyes-Zachary cites five opinions that allegedly were not weighed: three
consulting-examiner reports; a comprehensive mental-health assessment from a
mental-health provider; and a mental-status form from a treating physician. But with
two minor exceptions, which we will discuss, she does not identify any
inconsistencies either among these medical opinions or between the opinions and the
ALJ’s RFC. See 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.”).
1. Dr. Gordon’s consultative examination report
The first opinion that Ms. Keyes-Zachary complains was not properly weighed
is a psychological evaluation prepared by a consulting psychologist, Dr. Minor W.
Gordon, Ph.D. Dr. Gordon concluded that she suffered from dysthymic disorder,
mild to moderate; learning disabilities; and mild impairment at Axis IV. He gave her
a GAF (Global Assessment of Functioning) score of 65.1 The ALJ discussed Dr.
1
The GAF is a 100-point scale divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person’s psychological, social, and
occupational functioning. See American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 32, 34 (Text Revision 4th ed. 2000). GAF scores are
situated along the following “hypothetical continuum of mental health [and] illness”:
(continued)
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91-100: “Superior functioning in a wide range of activities, life’s problems
never seem to get out of hand, is sought out by others because of his or her
many positive qualities. No symptoms.”
81-90: “Absent or minimal symptoms (e.g., mild anxiety before an exam),
good functioning in all areas, interested and involved in a wide range of
activities, socially effective, generally satisfied with life, no more than
everyday problems or concerns (e.g., an occasional argument with family
members).”
71-80: “If symptoms are present, they are transient and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after family argument); no
more than slight impairment in social, occupational, or school functioning
(e.g., temporarily falling behind in schoolwork).”
61-70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR
some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.”
51-60: “Moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).”
41-50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).”
31-40: “Some impairment in reality testing or communication (e.g., speech is
at times illogical, obscure, or irrelevant) OR major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood
(e.g., depressed man avoids friends, neglects family, and is unable to work;
child beats up younger children, is defiant at home, and is failing at school).”
21-30: “Behavior is considerably influenced by delusions or hallucinations
OR serious impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability
to function in almost all areas (e.g., stays in bed all day; no job, home, or
friends).”
11-20: “Some danger of hurting self or others (e.g., suicide attempts without
clear expectation of death; frequently violent; manic excitement) OR
occasionally fails to maintain minimal personal hygiene (e.g., smears feces)
OR gross impairment in communication (e.g., largely incoherent or mute).”
1-10: “Persistent danger of severely hurting self or others (e.g., recurrent
violence) OR persistent inability to maintain minimal personal hygiene OR
serious suicidal act with clear expectation of death.”
0: “Inadequate information.”
(continued)
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Gordon’s report at some length but never explicitly stated whether he found it
persuasive or what weight he assigned to it.
This alleged error in the ALJ’s decision did not, however, prejudice
Ms. Keyes-Zachary, because giving greater weight to Dr. Gordon’s opinion
would not have helped her. Dr. Gordon accompanied his report with a mental-
medical-source statement opining that she had “no limitation” or “no significant
limitation” in every category relevant to work function. The ALJ noted this lack of
limitations in Dr. Gordon’s opinion and developed a mental RFC consistent with
Dr. Gordon’s findings in some areas but more favorable to Ms. Keyes-Zachary than
Dr. Gordon’s findings in other areas.2 Cf. Allen v. Barnhart, 357 F.3d 1140, 1145
(10th Cir. 2004) (approving harmless-error analysis when “based on material the ALJ
did at least consider (just not properly), we could confidently say that no reasonable
Id. at 34 (emphasis omitted).
2
Ms. Keyes-Zachary’s reply brief argues that in his mental-medical-source
statement Dr. Gordon actually found her less mentally restricted in the areas of
activities of daily living, social functioning, and concentration, persistence and pace
than the ALJ did in his decision. She complains that the Commissioner has “failed to
explain this inconsistency.” Reply Br. at 7. Ms. Keyes-Zachary does not say how it
could possibly benefit her to have the ALJ explain his failure to adopt the more
unfavorable portions of Dr. Gordon’s opinion or how his failure to provide such an
explanation is even error. See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012)
(“[W]e are aware of no controlling authority holding that the full adverse force of a
medical opinion cannot be moderated favorably [toward the claimant] unless the ALJ
provides an explanation for extending the claimant such a benefit.”).
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administrative factfinder, following the correct analysis, could have resolved the
factual matter in any other way.”).
2. Dr. Reddy’s consultative-examination report
Ms. Keyes-Zachary also mentions a physical-consultative-examination report
prepared by Dr. Sri K. Reddy. The report itself expresses few conclusions about her
physical capacities, but Dr. Reddy’s accompanying physical-medical-source
statement opined that Ms. Keyes-Zachary could sit, stand, or walk for eight hours at a
time and for eight hours in an eight-hour workday and otherwise found only
modest limitations. The ALJ discussed this record but did not expressly weigh it.
His RFC, however, is generally consistent with Dr. Reddy’s findings. There is no
reason to believe that a further analysis or weighing of this opinion could advance
Ms. Keyes-Zachary’s claim of disability. The alleged error is harmless.
3. Therapist Blasdel’s mental-health assessment
Next is a mental-health assessment performed by therapist Bob Blasdel.
Mr. Blasdel is neither a physician nor a psychologist; his credentials are stated as
“MS, LADC, LMFT.” Id. at 823. The ALJ did discuss his report in two paragraphs,
but did not provide any analysis from which it can be determined what weight he
gave to it.
Although Mr. Blasdel is not an “acceptable medical source” such as a medical
doctor or a licensed psychologist, see 20 C.F.R. § 404.1513(a), the ALJ was still
required to explain the amount of weight he gave to the opinions he expressed:
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[T]he adjudicator generally should explain the weight given to opinions
from these “other sources,” or otherwise ensure that the discussion of
the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.
SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006).
Most of Mr. Blasdel’s report is a narrative summary of statements by
Ms. Keyes-Zachary. These portions of the report do not express any opinions
concerning her “symptoms, diagnosis and prognosis, what [she] can still do despite
the impairment(s), [or her] physical and mental restrictions.” Id. at *5. The ALJ was
not required to assign a weight to Mr. Blasdel’s narrative of statements relayed to
him by Ms. Keyes-Zachary.
There are, however, a few statements scattered throughout the report that
might be considered “opinions” in the broad sense described by SSR 06-03p. Mr.
Blasdel noted, for example, that Ms. Keyes-Zachary’s “intellectual level is estimated
to be within the borderline average range” and that her “cognitive abilities are
essentially intact.” Aplt. App., Vol. 5 at 818. He stated that her “clinical
presentation includes moderately severe depression with an element of increased
anxiety” and he estimated her readiness for change as “fair.” Id. He opined that “it
is very much possible that she has some learning/processing deficits,” id. at 822, and
noted “[p]otential negative factors” that might affect her therapy including “a
multitude of psychiatric issues” and “very poor coping skills,” id. at 823. He also
made some passing common-sense observations, noting that Ms. Keyes-Zachary’s
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“aggressive behavior could be considered quite risky,” id. at 819, and that “[s]he
could probably benefit from additional positive social interaction,” id. at 821. None
of these observations, however, offers an assessment of the effect of Ms. Keyes-
Zachary’s mental limitations on her ability to work. The file includes much more
directly relevant evidence on these issues from acceptable medical sources. The
ALJ’s failure to assign a specific weight to Mr. Blasdel’s observations therefore did
not represent harmful error.
Of more concern was Mr. Blasdel’s assignment to Ms. Keyes-Zachary of a
current GAF score of 46, and a highest GAF score in the previous year of 50. The
vocational expert (VE) testified that scores in this range would eliminate all jobs
because a person with these GAF scores cannot maintain a job. This low GAF score
is inconsistent with other GAF evidence in the record, and the ALJ did not explain
how he weighed the conflicting GAF evidence. But this lack of comparative analysis
and weighing does not require reversal.
In the case of a nonacceptable medical source like Mr. Blasdel, the ALJ’s
decision is sufficient if it permits us to “follow the adjudicator’s reasoning.”
SSR 06-03p, 2006 WL 2329939, at *6. Particularly given the VE’s testimony on the
GAF-score issue, it is obvious that the ALJ gave little or no weight to Mr. Blasdel’s
GAF opinion. Simply put, had he assigned great weight to the low GAF score, he
would not have developed the mental RFC for Ms. Keyes-Zachary that he did.
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We further note that Ms. Keyes-Zachary fails to show that the ALJ erred by
rejecting or assigning only modest weight to Mr. Blasdel’s low GAF score in light of
the other GAF evidence in the record. Dr. Gordon’s report, assigning
Ms. Keyes-Zachary a GAF score of 65, was prepared by an “acceptable medical
source” and hence qualified as a medical opinion, while the GAF score of 45,
assessed by a counselor, was not. See 20 C.F.R. §§ 404.1513(a), 416.913(a).
This alone justifies reliance on Dr. Gordon’s higher GAF score. See SSR 06–03p,
2006 WL 2329939, at *5 (“The fact that a medical opinion is from an acceptable
medical source is a factor that may justify giving that opinion greater weight than
an opinion from a medical source who is not an acceptable medical source
because . . . acceptable medical sources are the most qualified health care
professionals.” (internal quotation marks omitted)). In sum, we discern no harmful
error here.
4. Dr. Crall’s disability examination
Stephanie C. Crall, Ph.D., conducted a disability examination of
Ms. Keyes-Zachary on December 19, 2008. The ALJ mentioned her evaluation,
noting that Dr. Crall had found Ms. Keyes-Zachary to be suffering from “major
depressive disorder, moderate, chronic and anxiety disorder.” Id., Vol. 3 at 474. He
did not state what weight he assigned to the opinion.
Dr. Crall’s most specific opinion concerning Ms. Keyes-Zachary’s mental
RFC was as follows:
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In the opinion of this evaluator, her ability to engage in work-related
mental activities, such as sustaining attention, understanding, and
remembering and to persist at such activities was likely adequate for
simple and some complex tasks. Functional limitations appeared more
likely due to physical rather than mental impairments.
Id., Vol. 5 at 838. These specific limitations that Dr. Crall assigned to
Ms. Keyes-Zachary were not inconsistent with the limitations the ALJ placed in her
RFC. See id., Vol. 3 at 469 (limiting Ms. Keyes-Zachary to “simple, repetitive and
routine tasks” and slightly limiting her “contact with the general public, co-workers
and supervisors”). Any error in failing to specify the weight given to the opinion was
harmless.
5. The Mental-Status Form
Finally, Ms. Keyes-Zachary points to a mental-status form completed on
March 30, 2009, diagnosing her with major depression (recurrent moderately) and
generalized anxiety. It is unclear who completed this one-page form, which is signed
only with a sideways “S.” Ms. Keyes-Zachary asserts without discussion that it was
prepared by an unspecified treating physician. Although the person who completed
the form attributed a number of mental limitations to Ms. Keyes-Zachary, the only
specific work-related limitation is not inconsistent with the ALJ’s RFC. The form
states that she can “remember, comprehend and carry out (simple) (complex)
instructions on an independent basis.” Aplt. App., Vol. 5 at 908. We discern no
harmful error in the ALJ’s failure to specify the weight he accorded to this opinion.
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B. ALJ’s alleged failure to consider medical evidence
The ALJ found that Ms. Keyes-Zachary’s medical evidence contained “few
objective findings that would substantiate the level of pain that she alleges,” and that
the record also failed “to demonstrate the presence of any pathological clinical signs,
significant medical findings, or any neurological abnormalities that would establish
the existence of a pattern of pain of such severity as to prevent her from engaging in
any work on a sustained basis.” Id., Vol. 3 at 474. Ms. Keyes-Zachary contends that
in reaching these conclusions, the ALJ mischaracterized or inadequately considered
certain medical evidence.3
The regulations require the ALJ to “consider all evidence in [the] case record
when [he] make[s] a determination or decision whether [claimant is] disabled.”
20 C.F.R. § 404.1520(a)(3). He may not “pick and choose among medical reports,
using portions of evidence favorable to his position while ignoring other evidence.”
Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
Ms. Keyes-Zachary notes that Dr. Gary R. Lee, a physical consultative
examiner (“CE”) who saw her in November 2004, determined that she had
“decreased, painful ROM [range of motion] with tenderness of the spine.” Although
Dr. Lee did make such findings, this decreased or painful range of motion was
3
Because of the heading under which this argument appears in Ms. Keyes-
Zachary’s brief, we view the argument as an assertion that the ALJ’s findings
concerning the state of the medical record are unsupported by substantial evidence,
rather than as part of a more general attack on his conclusions concerning Ms. Keyes-
Zachary’s credibility, which are the subject of her second issue, discussed infra.
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consistent with the ALJ’s conclusion that she is able to do a limited range of light
work. Dr. Lee noted that she could extend her back 20◦ out of an expected 25 and
could flex it 70◦ out of an expected 90; that she could laterally flex her back 20◦ on
both left and right out of an expected 25; that she could extend her neck by 30◦ out of
an expected 60, and flex her neck by 40◦ out of an expected 50; and that she had a
right extension value for her elbow of negative 5◦, while the expected value was 0.
Otherwise, all his ROM findings were normal.
Ms. Keyes-Zachary next cites examination results from Dr. Sri K. Reddy, the
CE who examined her in September 2006. These results do not support her attack on
the ALJ’s findings. Dr. Reddy found that she had “functional” ROM in various
joints, but also noted that she had tenderness in the spine and knees and some
reduced sensation in her feet. Id. She appears to believe that these exam results
support her argument about significantly limiting pain. (We note that Ms. Keyes-
Zachary simultaneously attacks Dr. Reddy for failing to measure and report ROMs
specifically and instead simply concluding that they were “functional”; she does not,
however, cite any authority requiring a consultative examiner to report specific ROM
values.) But despite his findings concerning tenderness and reduced sensation,
Dr. Reddy opined that Ms. Keyes-Zachary could sit, stand, and walk for up to eight
hours at a time in an eight-hour day, and could frequently lift up to 25 pounds and
frequently carry 20 pounds.
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Neither Dr. Lee’s nor Dr. Reddy’s examination undermines the ALJ’s
conclusions concerning the severity of Ms. Keyes-Zachary’s physical impairments.
To the extent that she raises additional issues involving the ALJ’s evaluation of the
medical evidence, her arguments lack merit or are insufficiently developed for our
review. In sum, we reject Ms. Keyes-Zachary’s contention that the ALJ’s opinion
does not adequately evaluate and discuss the medical-source evidence. Where, as
here, we can follow the adjudicator’s reasoning in conducting our review, and can
determine that correct legal standards have been applied, merely technical omissions
in the ALJ’s reasoning do not dictate reversal. In conducting our review, we should,
indeed must, exercise common sense. The more comprehensive the ALJ’s
explanation, the easier our task; but we cannot insist on technical perfection.
II. The ALJ’s credibility determination
A disability claimant’s complaints of disabling pain are evaluated using the
three-step analysis set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). Under
Luna an ALJ faced with a claim of disabling pain is required to consider and
determine (1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether the impairment is reasonably expected
to produce some pain of the sort alleged (what we term a “loose nexus”); and (3) if
so, whether, considering all the evidence, both objective and subjective, the
claimant’s pain was in fact disabling. Id. at 163-64.
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Evidence the ALJ should consider includes such items as “a claimant’s
persistent attempts to find relief for h[er] pain and h[er] willingness to try any
treatment prescribed, regular use of crutches or a cane, regular contact with a doctor,
and the possibility that psychological disorders combine with physical problems” and
“the claimant’s daily activities, and the dosage, effectiveness, and side effects of
medication.” Id. at 165-66. But so long as the ALJ “sets forth the specific evidence
he relies on in evaluating the claimant’s credibility,” he need not make a “formalistic
factor-by-factor recitation of the evidence.” See Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000). Again, common sense, not technical perfection, is our guide.
A. ALJ’s application of Luna factors
Ms. Keyes-Zachary complains that the ALJ failed to discuss and apply
properly the Luna factors for assessing credibility in evaluating her complaints of
pain and other symptoms. The record shows, however, that the ALJ did assess a
number of the Luna factors, tying them to evidence in the record, contrary to
Ms. Keyes-Zachary’s contention that he failed to do so.
The ALJ properly noted these facts: (1) Ms. Keyes-Zachary had undergone no
surgery for her shoulder problems and none had been recommended for her; (2) she
had also undergone no surgery for her neck or back problems; (3) she could
sometimes rid herself of her headaches with aspirin alone; (4) in 2005 she had
described her back pain as only “four” on a one-to-ten scale; (5) one of her treating
physicians limited her use of the pain-killer Lortab because he did not want her to use
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it routinely; and (6) another treating physician gave her Lortab on a one-time-only
basis.
The only Luna factor that Ms. Keyes-Zachary specifically identifies as not
being discussed by the ALJ is her activities of daily living (ADLs). In his decision
the ALJ discussed these activities as follows:
With respect to activities of daily living, the claimant testified her bed
“is the couch,” which she stated she “stays on all day.” The claimant
stated her mother helps her with laundry, stating she puts them [sic] in,
then her mother puts them [sic] in the dryer and then she sits on the
couch and folds them [sic]. The claimant further testified she grocery
shops, watches television, visits her father, and attends funerals at
church.
Id. at 470.
The ALJ made several observations concerning the credibility of this
testimony. First, he noted that “[t]he claimant has restricted her daily activities, but
the restrictions appear to be self-imposed.” Id. at 475. Next, he stated that “the
alleged effect of the claimant’s symptoms on [her] activities of daily living and basic
task performance is not consistent with the total medical and non-medical evidence in
the file.” Id. at 475-76. And he concluded:
[T]he claimant described daily activities that are fairly limited, however,
two factors weigh against considering these allegations to be strong
evidence in favor of finding the claimant disabled. First, allegedly
limited daily activities cannot be objectively verified with any
reasonable degree of certainty. Secondly, even if the claimant’s daily
activities are truly as limited as alleged, it is difficult to attribute that
degree of limitation to the claimant’s medical condition, as opposed to
other reasons, in view of the relatively weak medical evidence and other
factors discussed in this decision. Overall, the claimant’s reported
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limited daily activities are considered to be outweighed by the other
factors discussed in this decision.
Id. at 476.
Thus, the ALJ did properly evaluate Ms. Keyes-Zachary’s activities of daily
living, and at least generally tied his conclusions to the evidence. The only one of
the above ALJ findings to which Ms. Keyes-Zachary specifically objects is his
statement that her limited ADLs “cannot be objectively verified with any reasonable
degree of certainty.” Id. Citing an unpublished case, Swanson v. Barnhart,
190 F. App’x 655, 657 (10th Cir. 2006), she contends that it is error for the ALJ to
require objective confirmation of ADLs “as a standard of proof.” Aplt. Br. at 22.
But there is subsequent Tenth Circuit published authority concerning this issue
that is unfavorable to her position. In Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009),
this court considered identical language used by an ALJ to discount the claimant’s
credibility and concluded:
[T]he ALJ’s statement that Claimant’s daily limitations could not be
“objectively verified with any reasonable degree of certainty” did not
state a standard by which the ALJ made his adverse determination of
Claimant’s credibility. Rather, the ALJ’s statement was merely a
common sense observation that the ALJ would not treat Claimant’s
testimony as “strong evidence” of her disability due to his prior
determination that Claimant’s testimony was not “fully credible.”
Id. at 1070 (citations omitted).
The same can be said here. The ALJ merely considered the lack of objective
verification as a factor in assessing the value of Ms. Keyes-Zachary’s hearing
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testimony concerning her limited daily activities. Reversal on this issue is
inappropriate.
B. Failure to seek treatment
In assessing Ms. Keyes-Zachary’s pain complaint, the ALJ said that she
received no medical treatment between September 28, 2005, and April 27, 2006.
Medical records submitted with her prior appeal to the Appeals Council, however,
show that she was treated by Dr. Sharon Little on November 9, 2005, at which time
Dr. Little prescribed medications and ordered an x-ray of her left knee. She also had
blood work done at a tribal clinic in December 2005. It appears that these records
were available to the ALJ, because they were submitted to the Appeals Council on
April 12, 2007, and the ALJ did not hold a hearing or reach his decision until 2009.
The ALJ’s ignoring the tribal blood work was not reversible error, because the
treatment did not relate to her complaint of disabling pain, which is the issue here.
As for the visit with Dr. Little, however, although it primarily involved a sinus
complaint, Ms. Keyes-Zachary also mentioned her left knee pain and back pain
during the appointment. To treat these conditions, Dr. Little refilled her prescription
of Lortab and ordered an x-ray of her left knee. Id. at 325. Nevertheless, the ALJ’s
error concerning this visit did not harm Ms. Keyes-Zachary. The ALJ’s decision
discussed generally Ms. Keyes-Zachary’s use of Lortab, which her physicians did not
approve for long-term use. The left knee x-ray Dr. Little ordered during the
November 2005 visit turned out to be negative “except for a questionable
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suprapatellar joint effusion.” Aplt. App., Vol. 2 at 270. The ALJ discussed this
x-ray record, noting its generally negative findings, but incorrectly stating that the
x-ray dated from November of 2006 rather than November 2005. Thus, it appears
that the ALJ’s error was in chronology, not the substance of the visit. In our view,
the error in stating that Ms. Keyes-Zachary failed to pursue medical treatment
between September 2005 and April 2006 could not have had a substantial effect on
the ALJ’s assessment of the credibility of her complaint of disabling pain.
Ms. Keyes-Zachary also complains that the ALJ wrongfully noted her failure
to undergo surgery as a factor in discounting her credibility. She argues that
“[s]urgery is not required for an individual to be credible.” Aplt. Br. at 25. She cites
an unpublished case, Cook v. Apfel, No. 99-6000, 1999 WL 626166, at *4 (10th Cir.
Aug. 18, 1999), in which the claimant had failed to have surgery to remove her
leaking breast implants. In that case, however, the claimant’s doctors had
recommended such surgery, and there was evidence that the claimant could not afford
the surgery.
Here, by contrast, the ALJ noted that “when questioned, [Ms. Keyes-Zachary]
admitted she underwent no surgery and stated ‘none has been recommended on the
shoulder.’” Aplt. App., Vol. 3 at 470 (emphasis added). He also noted that she had
not undergone any surgery on her neck or back. The lack of surgery appears to have
been used to discount the severity of the impairments, which is a legitimate
consideration for the ALJ’s analysis. Accordingly, the argument lacks merit.
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C. ALJ’s discussion of credible and incredible testimony
Ms. Keyes-Zachary complains that the ALJ did not adequately analyze or
discuss her hearing testimony. In particular, although he found her testimony
credible only to the extent that she could perform a narrowed range of light work, he
allegedly failed to explain which portions of the testimony he believed and which
portions he found not credible. See Hayden v. Barnhart, 374 F.3d 986, 992 (10th Cir.
2004) (noting ALJ’s failure to “specify what testimony he found not to be credible”).
In a related claim of error, she complains that the ALJ “stated that he did not discount
all of her complaints, but failed to explain which complaints he did not discount.”
Aplt. Br. at 23.
These arguments fail to demonstrate reversible error. True, the ALJ did not
explicitly state “I find this statement credible” or “I find this statement not credible”
for each factual assertion made by Ms. Keyes-Zachary. Instead, he listed many of
her specific factual assertions, often following them by a qualifying statement to
indicate where he believed her testimony was contradicted or limited by other
evidence in the record. A few of these instances will suffice to illustrate the ALJ’s
approach:
At the time of the hearing, the claimant testified she last worked in
December 2001 at American Fiber. However, the claimant then testified
she worked from January 2002 through March 2002, as a stocker at a
liquor store.
[T]he claimant stated when injured, she “hit the cement floor with her
shoulder,” which then jammed “everything up.” However, when
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questioned further, the claimant admitted she underwent no surgery and
stated “none has been recommended on the shoulder.”
The claimant . . . stated she suffers from cardiovascular pulmonary
spasms. However, the claimant admitted she has no physical
restrictions as related to her heart, stating she “mainly just watches the
medications.”
[T]he claimant also reported she suffers from headaches “every day,”
stating she sometimes wakes up with a headache. However, the
claimant then stated she can sometimes “get rid of it” with aspirin.
The claimant also reported pain in her lower back and her neck, stating
she has spasms in her neck. However, once again, the claimant reported
she has not undergone any surgery on her neck or back.
Aplt. App., Vol. 3 at 469-70 (emphasis added).
Thus, although the ALJ may not have identified any specific incredible
statements as part of his evaluation of Ms. Keyes-Zachary’s hearing testimony, his
approach performed the essential function of a credibility analysis by indicating to
what extent he credited what she said when determining the limiting effect of her
symptoms. See Luna, 834 F.2d at 165-66 (identifying specific factors to be
considered in determining whether claimant’s testimony concerning effect of
symptoms is credible). This approach also supports his ultimate conclusion that
Ms. Keyes-Zachary’s statements concerning her symptoms’ intensity, persistence,
and limiting effects were not fully credible to the extent that they were inconsistent
with his RFC assessment.
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D. Citation to “other reasons” and “other factors”
In his conclusions concerning Ms. Keyes-Zachary’s credibility, the ALJ stated:
[E]ven if the claimant’s daily activities are truly as limited as alleged, it
is difficult to attribute that degree of limitation to the claimant’s medical
condition, as opposed to other reasons, in view of the relatively weak
medical evidence and other factors discussed in this decision. Overall,
the claimant’s reported limited daily activities are considered to be
outweighed by the other factors discussed in this decision.
Aplt. App., Vol. 3 at 476 (emphasis added).
Such conclusory analysis, which neither reveals what “other reasons” or “other
factors” prompted the ALJ’s conclusions, nor is tethered to specific evidence,
constitutes the type of disfavored boilerplate this court rejected in Hardman,
362 F.3d at 678-79 (in assessing a claimant’s credibility, “the use of standard
boilerplate language will not suffice” (internal brackets and quotation marks
omitted)). But use of such boilerplate is problematic only when it appears “in the
absence of a more thorough analysis.” Id. at 679. In this case, the ALJ’s decision
referred to specific evidence in support of its conclusions.
As noted earlier, the ALJ discussed Ms. Keyes-Zachary’s testimony and
described certain limitations and qualifications regarding her statements about her
symptoms. In addition, he analyzed the medical evidence in some detail, including
records that showed:
As of December 1, 2002, she had only a small amount of effusion present
in her right knee; a negative straight leg raise; and only mild degenerative
changes in her right knee with a possible meniscus tear;
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An examination on November 18, 2003, revealed “mild cervical strain type
symptoms”;
Her physical therapy in 2004 resulted in progress with increased range of
motion;
An MRI of the thoracic spine on September 22, 2004, was entirely normal;
X-rays taken February 10, 2005, of her lumbar spine revealed only mild
degenerative changes; and
X-rays on January 10, 2007 of the cervical spine, were negative, and those
of the lumbar spine revealed only mild degenerative changes.
The ALJ also detailed many other medical observations reflecting only limited
impairment.
Thus, the ALJ did not merely rely on boilerplate language in explaining his
conclusions. In this context, use of language referring to “other reasons” or “other
factors” does not constitute reversible error.
E. Persistence of pain complaints and use of medication
Ms. Keyes-Zachary complains that the ALJ ignored the consistency and sheer
quantity of her complaints to her physicians about pain, and failed to evaluate the
evidence that her doctors frequently prescribed her medications for her pain. But this
argument about consistency fails to consider that the ALJ rejected her complaint of
disabling pain because of lack of intensity, not lack of persistence. See Aplt. App. at
475-76 (“The Administrative Law Judge does not discount all of the claimant’s
complaints [of pain]. However, an individual does not have to be entirely pain free
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in order to have the residual functional capacity to engage in substantial gainful
activity.”).
Concerning Ms. Keyes-Zachary’s use of medication, the ALJ stated, “The
record also indicates the claimant has been prescribed and has taken appropriate
medications for her alleged impairments, which weighs in the claimant’s favor, but
the medical reports reveal that the medications have been relatively effective, when
taken as prescribed.” Id. at 476. Thus, the ALJ did credit her with ongoing use of
medication to relieve her symptoms.
F. Evaluation of knee and back impairments
The ALJ noted that when examined on December 1, 2002, Ms. Keyes-Zachary
was observed to have only “a small amount of effusion present” in her right knee. Id.
Vol. 3 at 471. Ms. Keyes-Zachary asserts that “a small effusion and even mild
degenerative changes on an x-ray are still objective medical evidence of
abnormalities supporting [her] credibility.” Aplt. Br. at 27-28. She also argues that
“[l]ater knee x-rays demonstrated an effusion to still be questionably present.” Id.
at 28. Ms. Keyes-Zachary has accurately summarized the later x-ray results: they
state “[t]here is questionable evidence of a suprapatellar joint effusion.” Aplt. App.,
Vol. 2 at 270 (emphasis added). The problem with this argument is that the ALJ
never said that he was discounting her knee problems altogether based on these two
x-ray results. She fails to show that any discounting of these problems based on the
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mostly negative x-rays represented a mischaracterization or misuse of the medical
evidence.
Ms. Keyes-Zachary also complains that the ALJ improperly discounted a
second set of knee x-rays. In September 2006 a radiologist x-rayed both her knees
and reported:
Degenerative changes are seen bilaterally. There is medial
compartment narrowing also seen bilaterally. There is incomplete
fusion of the tibial epiphysis bilaterally.
RIGHT KNEE: No fracture or dislocation is evident. No joint effusion
is seen. A small superior patellar osteophyte is noted. Enthesophyte is
seen involving the inferior portion of the patella. A small bone island is
noted in the proximal tibia.
LEFT KNEE: A small superior patellar osteophyte is identified. An
enthesophyte involves the superior portion of the patella.
Id. at 286.
The ALJ characterized these x-rays as follows: “There was no significant
pathology revealed in either knee.” Id., Vol. 3 at 475. Citing medical-dictionary
definitions of the terms used by the radiologist, Ms. Keyes-Zachary complains that
the ALJ’s conclusion ignores that there is “significant pathology present on [her]
x-rays to explain her pain.” Aplt. Br. at 28.
As the ALJ noted, however, these x-rays were taken in connection with a
consultative examination performed by Dr. Reddy. Dr. Reddy’s medical-source
statement said that while Ms. Keyes-Zachary had tenderness over her patella, she
demonstrated normal walking in his office and was capable of sitting, standing, or
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walking for eight hours at a time. In light of these medical opinions, the ALJ’s
conclusion that the pathology revealed on the x-rays was “not significant” from a
medical standpoint is supported by substantial evidence.
Ms. Keyes-Zachary next complains of the ALJ’s commentary about her back
problems. She lists some observations by the ALJ about certain medical evidence,
along with some later medical records that showed what she characterizes as
degenerative changes in her spine. She concludes that “the progression of
degenerative changes again supports a worsening of her condition which supports her
credibility, not detracts from it.” Id. at 29. Ms. Keyes-Zachary identifies no specific
statement to the contrary by the ALJ. We discern no reversible error.
G. ALJ’s discussion of activities of daily living
Ms. Keyes-Zachary begins this argument by listing her ADLs, and noting that
none of them preclude her from disability. The ALJ also listed her ADLs, but he did
not specifically rely on her ability to do them to conclude that she could perform
substantial gainful activity. Instead, he found he could not put much weight on her
limited ADLs because the limitations to which she testified could not be factually
verified, and she had failed to show that her limited ADLs were due to her alleged
impairments. He also commented that “the restrictions [on her ADLs] appear to be
self-imposed.” Id. at 475.
Ms. Keyes-Zachary takes issue with this last conclusion. She contends that the
ALJ engaged in “rank speculation,” Aplt. Br. at 31, in determining that her
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limitations were self-imposed. She argues that the evidence shows that her limited
ADLs are due to her impairments rather than her own choice to limit her daily
activities. The ALJ, however, was free to resolve evidentiary conflicts because there
is substantial evidence to support his conclusion.
Ms. Keyes-Zachary also complains that the ALJ failed to identify any evidence
to support his conclusion that the limitations in her daily activities are “not
consistent” with the medical and nonmedical evidence. Aplt. App., Vol. 3 at 475-76.
It is true that the ALJ should link his findings closely with the evidence and avoid
making conclusions in the guise of findings. See Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005) (“[An ALJ’s] findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” (internal quotation marks omitted)). Here, however, the ALJ’s findings
were closely enough linked to the evidence to pass muster.
H. ALJ’s discussion of past relevant work
The ALJ stated: “While the claimant testified that she had been in special-
education classes for reading and spelling, some of her successful past relevant work
was semi-skilled and skilled work activity based on vocational expert testimony.”
Aplt. App., Vol. 4 at 475. Ms. Keyes-Zachary complains that the medical evidence
shows that she had a low intelligence quotient (IQ), with a full scale score
authenticated at 84, in the borderline mental retardation range. But this in no way
detracts from the ALJ’s point, which is that she was actually performing semi-skilled
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and skilled work in the past. This is true regardless of what her measured IQ
happened to be. The disability inquiry has to do with what kind of substantial gainful
work the claimant can do, not just with her numerical scores.
Ms. Keyes-Zachary also asserts that the ALJ’s finding that she could not return
to her past relevant work (PRW) was inconsistent with his use of that same past
relevant work to show that her low IQ was not a problem. This assumes that the ALJ
thought that the reason she could not go back to work was her low IQ. In his
decision, however, the ALJ stated that Ms. Keyes-Zachary could not return to her
PRW because (according to the vocational expert who testified at the hearing), her
PRW was inconsistent with her RFC. Her RFC, as detailed in the ALJ’s decision,
contains both mental and physical limitations. It is clear from the VE’s testimony,
however, that her PRW was eliminated because of the physical requirements of the
RFC, not her mental abilities. Therefore, there is no merit to her argument that her
inability to do her PRW is inconsistent with the ALJ’s findings about her limited IQ.
I. Side effects of medications
Ms. Keyes-Zachary challenges the ALJ’s statement that she had “reported no
side effects” from her medications. Id, Vol. 3 at 476. His statement is only partially
true. At the hearing she testified:
Q Do any of the medications you take now or have taken in the past
cause you to have any side effects or allergic reactions?
A No. I have taken Vistaril and had to quit taking it because it felt
like somebody was setting [sic] on my chest.
Id., Vol. 5 at 992 (emphasis added).
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But, as the Commissioner points out, the only allegation here is that
Ms. Keyes-Zachary discontinued one medication that was causing her trouble. She
has not alleged any adverse effect on her ability to work because of her
discontinuance of this medication. Although the ALJ did not mention this alleged
side-effect, his failure to do so would not have affected the outcome in this case. The
alleged error is harmless.
J. Motivation to work
Ms. Keyes-Zachary notes that after she injured herself on the job in 2001, she
returned to the workforce. She contends that because of this, the ALJ should have
considered her “motivation to work” as a positive credibility factor. The record
shows that after her accident she worked for three months at a liquor store. She quit
because of pain caused by the work and because she needed to get away from an
alcoholic with whom she was living at the time. She apparently did not work again
after that. She did not even mention this short-term job until the ALJ prompted her
about it. The ALJ’s failure to consider her to be motivated to work because of a
three-month stint at a liquor store does not constitute reversible error.
The judgment of the district court is AFFIRMED.
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